Publication - Corporate report

Coronavirus Acts: third report to Scottish Parliament

Third two-monthly report to Scottish Parliament on the use of the powers contained within the Coronavirus Act 2020, Coronavirus (Scotland) Act 2020 and Coronavirus (Scotland) (No.2) Act 2020 covering the reporting period up to 30 September 2020.

166 page PDF

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166 page PDF

1.2 MB

Contents
Coronavirus Acts: third report to Scottish Parliament
7. Supplementary information

166 page PDF

1.2 MB

7. Supplementary information

7.1 First Scottish Act

7.1.1 Section 2 and schedule 1 - Eviction from dwelling-houses

Description of Provisions

7.1.1.1 The provisions originally increased the notice period across all eviction grounds in the private and social rented sector, except the abandonment and vacant property grounds. On 3 October 2020, regulations will come into force which will revert the three month notice period for anti-social behaviour and criminality eviction grounds, back to its prior one month notice period. For the private rented sector, the provisions amend all the eviction grounds a landlord can use to regain possession to make them discretionary.

Operation of Provision in Reporting Period

7.1.1.2 Section 2, schedule 1, paragraph 1, sub paragraph 2 makes provision for all private rented sector eviction cases going before the First-tier Tribunal (Housing and Property Chamber) to be considered on a discretionary basis. As of 23 September 2020, the First-tier Tribunal (Housing and Property Chamber) confirmed that it had received four applications that fall within the scope of the emergency provisions.

7.1.1.3 Section 2, schedule 1, paragraph 8 provides a power for Scottish Ministers, exercisable by the negative procedure, to modify the length of any period of notice specified to apply during the relevant period. In exercising this power, the Scottish Ministers cannot specify a notice period which is longer than six months. Since the last report to Parliament, a number of Local Authorities and social and private landlords have expressed significant concerns about the impact of anti-social and criminal behaviour on the safety and wellbeing of neighbours and wider communities over recent months. A range of evidence was submitted to support this including case studies from the Scottish Federation of Housing Associations, Glasgow and West of Scotland Forum of Housing Associations and COSLA. Furthermore, the Scottish Association of Landlords (SAL) provided statistics relating to a summary of calls to their helpline during the period 1 April – 31 July 2020, compared to the same period in 2019. This showed an 88% increase in calls from landlords seeking advice on how to deal with anti-social behaviour by tenants. In addition, data from Housemark Scotland shows reports of anti-social behaviour in the social rented sector rose by 17% between May and June 2020, which was around 30% higher than would normally be expected in this period.

7.1.1.4 Therefore, in light of the substantial impact such behaviour can have on individuals and communities, Ministers have exercised their powers under section 2 (schedule 1, paragraph 8) to revert the notice period for eviction grounds relating to anti-social behaviour and criminality across all tenancies back to its original one month notice period. The Coronavirus (Scotland) Act 2020 (Eviction from Dwelling-houses) (Notice Periods) Modification Regulations 2020 (SSI 2020/270)[30] were laid in Parliament on 4 September 2020 and are anticipated to come into effect on 3 October 2020. These regulations will ensure that where landlords have clear evidence of anti-social or criminal behaviour, that cannot be resolved by other means, then they are able to take the necessary action to end the tenancy. It should be noted that Ministers can exercise their power under section 2 (schedule 1, paragraph 8) at any time during the lifetime of the emergency legislation. Therefore, should significant lockdown restrictions be re-introduced, which would require people to remain in their homes due to resurgence of the virus – Ministers could, subject to approval by the Parliament, reinstate a longer notice period for anti-social and criminal eviction grounds.

7.1.1.5 The provisions which extend notice periods to - in effect - halt any eviction action under the existing legislation including the Private Housing (Tenancies) (Scotland) Act 2016 and the Housing (Scotland) Act 2001, for up to six months, have been used in the reporting period. This applies to both the social and private rented housing sectors in order to ensure that the position is absolutely clear for all landlords in Scotland.

7.1.1.6 Before the provisions commenced, a tenant with a private residential tenancy could have been asked to leave their home within 28 days of a notice being served by the landlord, if they had been living in the property for six months or less; or if the landlord was using an eviction ground to do with the tenant's behaviour. Where a tenant had lived in a property for six months or more and the eviction ground did not relate to the tenant's behaviour, a landlord was required to give 84 days' notice. With the new provisions, the tenant can stay for up to six months before an application can be made to the Tribunal to repossess a property for all grounds other than the abandonment and vacant property grounds, and now also the anti-social behaviour and criminality grounds.

Factors Considered to Determine Use and Continued Necessity

7.1.1.7 In this reporting period, in order to assess the continued necessity of the provisions, the Scottish Government has considered various sources of information. Recent employment statistics show that the unemployment rate in Scotland in the latest period May to July 2020 is up by 0.1 percentage points over the quarter, and up by 0.7 percentage points over the year. In August, Scotland's unemployment claimant count was 225,800, up by 2.1% since July, and more than double the level compared to the previous year. There has also been a substantial increase in Universal Credit claims in recent months, with 470,000 people in Scotland now on Universal Credit as at July 2020, almost double the number in January 2020[31]. Up to the end of July 2020, a total of 779,500 employees in Scotland have been furloughed[32], with a further 157,000 claims made by self-employed workers[33]. As we move towards furlough ending there are significant concerns around the potential for further job losses.

7.1.1.8 In addition to this, there is evidence that renting households are less likely than homeowners to have enough savings to cope with a fall in employment income. Office for National Statistics (ONS) analysis of household financial resilience shows that an estimated 28% of renting households in Scotland would be unable to cover a 20% loss of income for one month, rising to 43% if the loss were sustained for three months[34]. In addition to this, recent findings from a YouGov survey of adults in the UK carried out from 30 July to 2 August 2020 shows that the coronavirus crisis has had a greater impact on employment among people who rent than those who own their own home. Findings include that employees who rent are more likely to be unable to work at all as a result of the pandemic (9% compared with 3% of employed owners), are more likely to have been furloughed (15% compared with 11% of employed owners), and are also more likely to have been made redundant (6% compared with 2% of employed owners)[35].

7.1.1.9 A survey commissioned by the Joseph Rowntree Foundation in June 2020 showed that in the private rented sector in Scotland, almost half of tenants (45%) had seen a drop in their income since March 2020. Of those, seven in 10 (71%) had cut back on spending, and nearly six in 10 (58%) had to borrow or use up savings, the highest proportion of any tenure. In addition, four in 10 (42%) private renters were worried about their ability to pay rent after lockdown is lifted, and 25% of private tenants had already fallen behind with a payment, most likely gas, electricity and other bills[36].

7.1.1.10 Monthly coronavirus information published by the Scottish Housing Regulator[37] shows that the total value of rent arrears in the social sector at the end of April 2020 was £150 million, following which it increased by £8.2 million (5.5%) during the month of May 2020, by £3.7 million (2.3%) during June 2020, and by a further £1.5 million in July, bringing total social sector rent arrears to stand at £163.3m as at the end of July 2020. During June 2020, there were a total of 245 notices of proceedings for recovery of possession issued by social landlords to tenants for rent arrears, increasing to 376 in July, and a total of 30 court actions for eviction were initiated in June, increasing to 89 in July, levels which are significantly lower when compared to average monthly figures for previous years.

7.1.1.11 Evidence on the scale of rent arrears and repossession proceedings in the private rented sector in Scotland is as yet relatively limited, with some mixed findings being reported so far, although this may become clearer as further evidence is gathered and reported on, including by the First-tier Tribunal (Housing and Property Chamber). In terms of rent arrears, research findings by the Joseph Rowntree Foundation[38] found that, as at June 2020, there was not any sharp increase in rent arrears for private renters identified, with fewer than one in ten private tenants in Scotland estimated to be in arrears as at June 2020. However, a separate analysis carried out by PayProp, based on the data that it holds from the processing of rent payments from tenants in Scotland, shows that the percentage of tenants in arrears, based on the sample of tenants paying rent across the January to May 2020 period, had increased from 8% in March, up to 13% in April, and then 14% in May[39].

7.1.1.12 A recent survey of private landlords and agents by the Scottish Association of Landlords, carried out at the start of August 2020, found that many members had provided financial assistance to their tenants during the pandemic. Results showed that 44% of landlord and agent survey respondents had given a rent discount to their tenants, equating to 11% of properties having had a rent reduction in place.

7.1.1.13 Established in April 2020, the Private Rented Sector Resilience Group provides a valuable mechanism for key stakeholders to discuss issues arising from the coronavirus outbreak and it assists in monitoring the impact, and continuing need for, these provisions. Meeting on a fortnightly basis, a key focus of the groups' work is on tenancy sustainment and raising tenants awareness of their rights, as well as the advice and financial support available, given the emerging evidence of an increase in rent arrears and a rise in those seeking housing advice.

7.1.1.14 The Social Sector Resilience Group meets fortnightly to discuss and resolve issues of common interest, to ensure that landlords can deliver and maintain essential services during the period of the coronavirus outbreak and also assists in monitoring the impact and ongoing need for these provisions.

7.1.1.15 Both the Social Sector and Private Rented Sector Resilience Groups were crucial in providing evidence to support the need for Ministers to use their powers to vary some of the notice periods which had been amended by the first Scottish Act, in order to address serious anti-social and criminal behaviour taking place in communities across Scotland.

7.1.1.16 As part of the continuing evaluation of the impact of private residential tenancy, the Scottish Government is participating in the three year Rent Better research programme (2019-2022) funded by the Nationwide Foundation as part of its Transforming the Private Rented Sector stream. Rent Better aims to understand the impact of the changes on tenants and landlords, and involves both quantitative and qualitative research with a wide range of stakeholders including families with children. Wave one fieldwork is complete with an overview report due later this year. Wave two will include the impact of coronavirus on private renters.

7.1.1.17 The Scottish Government assessed the potential impact of these provisions for tenants in relation to human rights, children's rights and equalities prior to the introduction of the legislation and continues to keep these rights under review when considering their continued necessity.

7.1.1.18 The impact on a landlord's human rights was also considered, with regards to their ability to control their property in relation to Article 1 of Protocol No.1 to the European Convention on Human Rights (ECHR). The Scottish Government's view is that the temporary nature of the provisions continue to strike an appropriate balance between the landlord's rights in the property, and the rights of the tenant to be protected during the pandemic. The maximum period of notice that the landlord will have to provide will be six months and the provisions will not affect notices which have already been issued under existing notice periods.

7.1.1.19 As we emerge from the emergency lockdown restrictions put in place at the outset of the COVID-19 pandemic, and we move through the Route Map, including the re-opening of the housing market, consideration has been given in the review of the proportionality and necessity of these provisions, to the detrimental impact of a landlord not being able to take action to resolve serious cases of anti-social or criminal behaviour. However, that consideration has not resulted in any changes during the reporting period to the continuing need for tenants across both the social and private rented sectors to be protected against eviction, for all other eviction grounds.

7.1.1.20 Recent briefing from the Joseph Rowntree Foundation[40] provides some information on the known impacts of the financial pressures related to the pandemic on people with one or more of the protected characteristics, including:

  • A majority of households in all age groups except the over-55s reported extra costs as a result of the pandemic, reflecting more people complying with lockdown rules and staying at home for longer. Four in ten (42%) reported extra costs for food and three in ten (30%) for gas and electricity. These numbers are significantly higher (63% and 45% respectively) for families with children. Around one in four households (23%) say they are not able to cover these extra costs comfortably.
  • There are indications that the pandemic has created financial pressure which is impacting on mental health and family life. Two-thirds of parents relying on Universal Credit or Child Tax Credit report money worries having either a significant (25%) or moderate (40%) impact on their mental health.

7.1.1.21 The Scottish Government considers that the temporary legislative changes to protect renters continue to have a positive impact across those with protected characteristics, including women who are more likely to have caring responsibilities and therefore be impacted more significantly - socially and financially - by the consequences of the outbreak. An estimated 54% of householders in the social rented sector are female, with the equivalent percentage for private renting households being 43%[41]. The legislative measures continue to prevent all renters across all protected characteristics from being evicted during the current crisis. Research carried out by the Resolution Foundation in May 2020[42] indicated that across the UK one-third of 18 to 24 year old employees had lost jobs or been furloughed, compared to one-in-six prime-age adults. In Scotland, over half (53%) of all highest income householders aged 16 to 24 live in the private rented sector, a total of 60,000 households[43]. In terms of disability, 59% of households in the social rented sector in Scotland have someone living with a long term physical or mental health condition or illness.

7.1.1.22 Family households are, as expected, significantly impacted by the health crisis. There is no evidence of some groups of children and young people being affected disproportionately by the provisions. Keeping the measures in place whilst we recover from the social and economic crisis will ensure both children and young people living within rented family homes continue to be protected from homelessness, with an estimated 230,000 children living in the social rented sector[44] and 120,000 children living in the private rented sector[45].

7.1.1.23 The provisions remain necessary to ensure that tenants, including those who have become unemployed, or will become unemployed as the furlough scheme ends, have time to apply for, and receive, the available support in the short term and, if necessary, to give them time to plan for the longer term as we recover from this unprecedented crisis. The provisions also continue to be necessary in order to help mitigate any further pressure on housing, health and other public services.

7.1.2 Section 4 and schedule 3 – Children and vulnerable adults – Part 1 – Children

Description of provisions

7.1.2.1 Child protection provisions: The provisions remove the requirement for a second working day hearing to be held following the issuing of a Child Protection Order (CPO), and to amend timescales in relation to the issuing of Child Assessment Orders (CAO).

7.1.2.2 Children's hearings provisions: The provisions relax existing requirements for the composition of children's hearings, and the administration and conduct of children's hearings and there are extensions to the timescales for when certain legal orders must be reviewed and appeals against legal orders lodged.

7.1.2.3 Looked after children provisions: The provisions extend the timescales for review of children's cases when they are placed in kinship care and enable Local Authorities to use foster carers more flexibly to look after additional children when necessary.

Operation of Provisions in Reporting Period

7.1.2.4 This section provides supplementary information on the use of children's provisions within Part 1 of schedule 3 of the first Scottish Act. Guidance[46] on the use of provisions has been published. The provisions have been separated into three groups: child protection provisions, children's hearings provisions and looked after children provisions, as data comes from different sources and there are separate structures to assess continued necessity of the provisions within each group.

7.1.2.5 The data in relation to the use of the powers under section 4 and schedule 3, Part 1 covers the first reporting period 7 April to 20 May 2020; the second reporting period 21 May to 15 July 2020, and the third reporting period 16 July to 13 September 2020, unless specified otherwise below. Information on where data has been gathered has been included along with any caveats about the data provided.

Child protection provisions

No requirement for a second working day hearing to be held following the issuing of a CPO

7.1.2.6 Under the first Scottish Act (schedule 3, paragraph 2(3) to (6)), which amends relevant provision of the Children's Hearings (Scotland) Act 2011 ('the 2011 Act'), the second working day children's hearing is not required. Instead a children's hearing to consider grounds for referral will sit on or before the eighth working day. Until the eighth working day, a child or relevant person can make an application for the CPO to be recalled or varied (ordinarily this would have been available until the second working day children's hearing under the 2011 Act) and for two working days following the second working day children's hearing (if the order is continued or varied by that hearing).

7.1.2.7 In the first reporting period, there were 83 CPOs[47]; in the second reporting period there were 99 CPOs; in the third reporting period there were 92 CPOs. The use of this provision has meant that Scottish Children's Reporter Administration (SCRA) did not have to hold second working day children's hearings in these cases.

Amendment of timescales in relation to the issuing of CAO

7.1.2.8 These provisions were made under the first Scottish Act, schedule 3, paragraph 2(2). In the first reporting period, there were no CAOs; in the second reporting period one CAO was initiated[48] and in the third reporting period there were no CAOs. Although there is low usage, the provisions continue to be useful, proportionate, and necessary, particularly in light of the need to ensure that services can assess vulnerable children who are not visible to services during coronavirus, when necessary.

Children's hearings provisions

Relaxation of requirement for children's panel to consist of three members and relaxation of requirement to have a gender mix on each children's hearing

7.1.2.9 The provisions (first Scottish Act, schedule 3, paragraph 1) include relaxation of the requirement for children's hearings to consist of three members and to have a gender mix.

7.1.2.10 In the first reporting period, five hearings had fewer than three panel members in attendance, and one did not have both male and female members[49]. In the second reporting period, 22 hearings had fewer than 3 panel members in attendance, and 18 did not have both male and female members. No hearings proceeded with only one panel member in attendance. The total number of hearings making use of the relaxation provisions during the reporting period was 30. This differs from the total making use of the two provisions (22 and 18, above) because both provisions can be used simultaneously (where, for example, a panel consists of 2 panel members of the same gender).[50]

7.1.2.11 In the third reporting period, 18 hearings had fewer than 3 panel members in attendance, and 11 did not have both male and female members[51]. No hearings proceeded with only one panel member in attendance. The total number of hearings making use of the relaxation provisions during the reporting period was 26.

7.1.2.12 Since the powers came in to force, therefore, 45 hearings have had fewer than 3 panel members in place, and 30 did not have both male and female members. As noted above, there will be instances where both provisions were used at the same hearing. It is not possible to provide the exact total number of individual hearings making use of the relaxation powers since they came in to force, as the recording of this was not introduced until the second reporting period. The maximum total, however, would be 62 hearings (6 from the first reporting period, 30 from the second, and 26 from the third).

Maximum period for which a Compulsory Supervision Order (CSO) has effect

7.1.2.13 The first Scottish Act (schedule 3, paragraph 3) provides that if a hearing has not taken place to review a CSO before it expires, the order will not expire, unless six months have passed since the expiry date or the child has attained the age of 18 years. However, alongside this, there is a duty on the Principal Reporter to arrange a hearing before the original expiry date, and if not, to arrange the hearing as soon as practicable thereafter.

7.1.2.14 Within the first reporting period there were 467 CSOs, where orders were extended beyond their expiry date[52]. Within the second reporting period there were 862 CSOs, where orders were extended beyond their expiry date. In the third reporting period there were 926 CSOs where orders were extended beyond their expiry date. This provision has only been used to the extent necessary driven by the practicalities of holding children's hearings in the current context, and the extent of use will vary as the safety and operational contexts develop. Due to the severe restriction in the number of children's hearings which could be held, this provision has had the effect of extending a number of orders.

7.1.2.15 Prioritisation of work has been essential to ensure continuity of protections for children and young people and putting in place appropriate legal measures to keep children and young people safe. The SCRA has been unable to operate at anywhere near normal capacity as a result of movement restrictions, social distancing and virus prevention measures put in place and enforced. The SCRA is seeking to increase the number of hearings now that restriction measures are reducing. This will be by arranging face to face hearings, sometimes with some participants attending remotely, but also continuing to hold virtual hearings.

7.1.2.16 The Principal Reporter is applying a prioritisation framework to enable the timely consideration of individual cases to the maximum extent possible, in consultation with referring authorities and with children/relevant persons, and is closely monitoring the situation with a view to arranging such hearings as soon as practicable. While service user availability, views and preferences for rescheduling are only elements of 'practicability' - more significant considerations being need and risk - the SCRA has done so following dialogue with social workers and families. Those involved indicated they would prefer to come back at a later date to a face to face children's hearing. Reporters are reviewing these arrangements on a case by case basis, and taking into consideration whether there would likely be a risk of detriment to the child's welfare if the CSO was not varied or terminated before the original expiry date.

7.1.2.17 During the first reporting period there were 109 children's hearings when CSOs were due to expire. During the second reporting period there were 149 children's hearings when CSOs were due to expire. In the third reporting period there were 287 children's hearings when CSO's were due to expire. The number of hearings being held has been increasing since 4 May 2020 as the system has adapted and the number of reviews where CSO's were due to expire has also increased. The SCRA continues to review the necessity of the use of this provision and the scheduling of reviews as soon as practicable. The SCRA has developed a recovery plan which models review of all CSOs where the use of the emergency legislation will gradually be reduced and will cease to be used. This provision in the first Scottish Act allows an expiry review of a CSO to take place up to six months after the original expiry date. The use of this six month period will be reduced incrementally as the SCRA increases its capacity, and its ability to arrange expiry review hearings becomes mores practicable.

Maximum period for which Interim Compulsory Supervision Order (ICSO) or Interim Variation of Compulsory Supervision Order (IVCSO) has effect

7.1.2.18 To allow more flexibility for agencies seeking to respond in a prioritised way to the challenges posed by the coronavirus pandemic, paragraph 4(2) and (3) of schedule 3 of the first Scottish Act amend sections 86(3) and 140(4) of the 2011 Act. This provides that the maximum period for which an ICSO or an IVCSO has effect is:

where the order is made by a children's hearing, 44 days, or

where the order is made by a sheriff, such other period as the sheriff may specify.

7.1.2.19 As with the existing legislation, a hearing may make an ICSO or interim variation for a shorter period than the maximum period.

7.1.2.20 Table Two below sets out the interim orders where the provision has been used (some children will have had more than one interim order issued in the period and the figures include orders which authorised secure accommodation). It is not possible to calculate how much time has been added; some orders will have had the maximum time (44 days for a hearing/ possibly longer for the Sheriff Court) and others will have had different times up to the maximum.

Table Two – Interim orders where the provision has been used
Report Period 1 Report Period 2 Report Period 3 Total
Interim Order Type
ICSO 270 367 421 1,058
IVCSO 151 147 170 468
Court ICSO / IVCSO (including following appeal) 223 271 267 761
Total 644 785 858 2,287

Period within which children's hearing must be heard in certain cases - secure care and other place of safety placements

7.1.2.21 In the first reporting period, of 16 interim orders authorising the use of secure accommodation, 9 used the extended timescales which are available under the provision. In the second reporting period of 28 interim orders authorising the use of secure accommodation, 12 used the extended timescales which are available under the provision. In the third reporting period of 26 interim orders authorising the use of secure accommodation, 11 used the extended timescales which are available under the provision. The provision extends the timescales to hear an appeal to seven working days from three working days in situations that the existing permitted timescales i.e. three days, is not practicable.

Extended timescale following emergency transfer of a child or young person to secure accommodation

7.1.2.22 The first Scottish Act (schedule 3, paragraph 6) allows the Principal Reporter the discretion to extend the period within which a children's hearing must be held by 24 hours (from 72 hours to 96 hours) where it is not practicable to meet the existing timescale. The SCRA continues to record fewer than 5 cases where a young person has been kept in secure accommodation for an additional 24 hours before coming to a children's hearing, across all 3 reporting periods. While section 4 and schedule 3, Part 1, paragraph 6 has been used in the current reporting period, it was expired as of 29 September 2020. Further detail on the decision to expire the provision is included within the Policy Note[53] which accompanies the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020.

Modification of certain time limits for making and determination of appeals

7.1.2.23 Paragraph 7 of schedule 3 of the first Scottish Act extends the time limits for the making, disposal or determination of appeals or the making or lodging of applications. Disaggregated data is not available from the SCRA or the SCTS.

7.1.2.24 The SCRA has supplied data in relation to appeals which were lodged under the provisions of the first Scottish Act after 7 April 2020 and were determined before 13 September 2020. The SCRA does not record the data to distinguish appeals specifically modified by the provisions of the first Scottish Act, but it has been able to provide figures which indicate the current position in relation to appeals of decisions from the children's hearing.

7.1.2.25 Schedule 3, paragraph 7(2) of the first Scottish Act extends the period of time available for a person with the right to appeal a decision of a children's hearing to lodge that appeal at the Sheriff Court (from 21 to 42 days). There have been 48 appeals of decisions in relation to a CSO that have been determined in the period 7 April to 13 September 2020, and the average time taken from the date of the children's hearing to the determination of the appeal was 44 days.

7.1.2.26 Schedule 3, paragraph 7(3) of the first Scottish Act extends from three to seven days the time limits for the determination of certain short notice appeals. There were 117 appeals of ICSOs determined in the period 7 April to 13 September 2020, and the average time taken from the date of the children's hearing to the determination of the appeal was 18 days (please note that appeals may not have been lodged until several days after the hearing).

7.1.2.27 Schedule 3, paragraph 7(4) of the first Scottish Act extends the time limit for making an appeal in relation to a relevant person determination from 7 to 21 days and extends the time period for determination of the appeal in relation to a relevant person determination from 3 to 7 days. There were 8 appeals of relevant person determinations (made by a children's hearing or a pre-hearing panel) in the period 7 April to 13 September 2020 and the average time taken from the date of the children's hearing to the determination of the appeal was 26 days for the children's hearing decision and 12 days for the pre-hearing panel decision (please note that appeals may not have been lodged until several days after the hearing).

7.1.2.28 Schedule 3, paragraph 7(5) of the first Scottish Act extends the time limits for lodging appeals in relation to a decision affecting a contact direction or permanence order from 21 to 42 days and extends the time for determination of the appeal from 3 to 7 days. The SCRA recorded no appeals of this type in the period 7 April to 13 September 2020.

7.1.2.29 Schedule 3, paragraph 7 sub paragraphs (6), (7) and (8) extends the time limit for lodging appeals to the Sheriff Appeal Court or Court of Session in relation to certain decisions made by sheriffs under the 2011 Act. The time limit is extended from 28 days to 56 days. There have been no appeals made against decisions to which the extended time limit applies in the period 7 April to 13 September 2020.

Dispensation with physical attendance at children's hearings

7.1.2.30 Schedule 3, paragraph 8 of the first Scottish Act covers attendance of persons other than children or relevant persons to facilitate remote attendance of other persons. There is existing provision in rule 19 of the procedural rules to enable attendance by other means.

7.1.2.31 The majority of the 4740 children's hearings that have taken place over the reporting periods have been 'virtual children's hearings' as children, family members, professionals, reporters and the decision makers (panel members) have been unable to attend the public spaces in children's hearings centres. Since the end of July 2020, SCRA has been opening up children's hearings centres in a safe, socially distanced manner and the number of hearings where children and families have been able to attend in person has increased.

Authentication of children's hearings documentation by electronic signature

7.1.2.32 Schedule 3, paragraph 9 of the first Scottish Act covers authentication of documents by electronic signature. This power has been used in all of the 4740 children's hearings held over the reporting periods.

Looked after children provisions

7.1.2.33 Schedule 3, paragraph 10 of the first Scottish Act extends the timescales for review of children's cases when they are placed in kinship care and enables Local Authorities to work with foster carers more flexibly to look after additional children when necessary. Where possible, Local Authorities have adhered to the previous timescales, but the provisions have allowed additional flexibility in pressured situations which has allowed Local Authorities to take into account the views of the children and where possible keep children within their extended families.

7.1.2.34 21 Local Authorities across Scotland have been able to provide data on the use of these provisions between 11 July to 31 August 2020. Use of the provisions has been relatively low, and varied between Local Authority areas. Some Local Authorities have not needed to use any of the provisions as their social work teams had enough capacity to respond to demand.

7.1.2.35 The provisions have been used to allow more than three children to be placed with a foster carer eight times during the third reporting period. There have been five instances of a child being placed with a kinship carer, in an emergency, for a period not exceeding five working days, rather than three working days, a kinship placement has been extended in an emergency twice, and the timeframes for a kinship review has been extended once during the third reporting period.

7.1.2.36 Whilst not all Local Authorities have needed to use the provisions, there has been a general consensus that the provisions have been helpful to allow the right decisions to be made for a child, and that they may be useful if there is a surge in referrals over the winter which could place additional pressure on foster or kinship placements.

Factors Considered to Determine Use and Continued Necessity

7.1.2.37 The main factors which have been considered in the assessment of continued necessity of the provisions include: prevailing Government guidance and public health advice, an assessment of the impact of the pandemic on the health and availability of staff and volunteers, and an assessment of the impacts on vulnerable and disadvantaged children and families. In the context of this emergency, these provisions are designed to enable best use of very limited resources in Local Authorities, and the children's hearings system, so that efforts can be focused on safeguarding the welfare of Scotland's most vulnerable children and on supporting families and carers who need it most. The measures in the first Scottish Act are limited to those considered necessary to support and protect children's rights and promote their welfare and wellbeing in accordance with obligations under the UN Convention on the Rights of the Child.

7.1.2.38 The Scottish Government is in regular dialogue with the children's services sector and children's hearings partners to monitor the impact of the pandemic on service provision and the protections afforded to children.

7.1.2.39 In relation to the provisions covering child protection, children's hearings and looked after children, the Scottish Government is aware that there is continued pressure on services in relation to vulnerable children and these provisions continue to be necessary. There is continued uncertainty about the impact any local outbreaks or resurgence of the virus may have on services. Children's hearings partners are returning to face to face hearings but there will be a blended model of virtual and face to face for the foreseeable future and this continues to put pressure on the capacity of the system.

7.1.3 Section 4 and schedule 3 - Children and vulnerable adults – Part 2 - Vulnerable adults

Description of Provisions

7.1.3.1 Paragraph 11(1) modifies the application of certain adults with incapacity principles in the use of section 13ZA of the Social Work (Scotland) Act 1968. Paragraphs 11(2) and 11(3) effectively 'stop the clock' on the duration of guardianship orders and certificates authorising medical treatment for the period the emergency legislation is in force.

Operation of Provisions in Reporting Period

7.1.3.2 The powers under paragraph 11(1) of this section have not yet commenced and therefore the powers have not been used in the reporting period.

7.1.3.3 Paragraphs 11(2) and 11(3) of this section commenced on 7 April 2020 and the powers under these sections have been used in the reporting period. In relation to expiry of guardianships, the first report stated in the period 7 April to 21 May 2020, 150 guardianships were due to expire and will have had the clock stopped when the provisions came into force. In the second reporting period (22 May to 31 July 2020), 294 guardianships were due to expire and had the clock stopped. In this (the third) reporting period (1 Aug to 30 September) 223 guardianships were due to expire and had the clock stopped.

Factors Considered to Determine Use and Continued Necessity

Paragraph 11(1)

7.1.3.4 The aim of the amendments to section 13ZA of the Social Work (Scotland) Act 1968, was to put provisions in place to ensure the safety of the adult, for instance where they might be in an acute hospital ward which was expecting a large influx of coronavirus patients, putting the adult at risk. In these cases the section 13ZA amendment provides a way to move the adult quickly, and with legal authority, to a more suitable location.

7.1.3.5 In the reporting period, the powers under this section have not required to be used. This may be in part due to a reduction in delayed discharge since the provision was introduced. Delayed discharge figures, which are monitored by the Scottish Government, have come down substantially since the section 13ZA amendments were put in place. As of 9 September 2020, they have reduced by 36% (588 beds) since the 4 March 2020 baseline. The Scottish Government is liaising very closely with Health and Social Care Partnerships on their procedures around discharge in order to maintain the gains made since the 4 March 2020 baseline and to improve the pathway in moving adults lacking capacity from hospital to other more suitable accommodation with appropriate legal authority.

7.1.3.6 Amendments to section 13ZA remove the requirement to consult with the adult or interested parties and also allow the Local Authority to use the powers in section 13ZA where there is an existing guardian, welfare attorney or intervener with relevant powers.

7.1.3.7 Article 5 of the ECHR (right to liberty and security) could be engaged in particular with these amendments as they could be used to empower the Local Authority to speedily move adults from acute hospital beds to other more appropriate accommodation.

7.1.3.8 Article 8 of the ECHR (right to respect for private and family life) may also have been engaged here in that Local Authorities can provide services without involving the views of the adult, or other relevant party including any guardian, welfare attorney or intervener.

7.1.3.9 The Scottish Government has been very sensitive to the human rights impacts associated with these provisions and has liaised very closely with stakeholders regarding the ongoing review of continued necessity of these provisions. Having considered stakeholder feedback, the Scottish Government has concluded that these provisions are no longer necessary and should be expired. Ministers have considered a fine balance of human rights between the right to life and the right of a person and any interested parties to be consulted in any decisions that might affect them. These provisions required regulations to come into force, which were never brought forward by Ministers, even at the height of the pandemic. Given improvements in knowledge and practice since then, Ministers consider that there are no conditions likely to occur where it would be suitable to use these provisions. Section 4 and schedule 3, Part 2, paragraph 11(1) was expired on 29 September 2020.

Paragraph 11(2) and (3)

7.1.3.10 The powers to 'stop the clock' on the duration of guardianship orders and section 47 certificates commenced on 7 April 2020. At the end of the emergency legislative period, the time remaining on the orders and certificates will resume and applicants will have to renew their guardianship or obtain another certificate as per the usual procedure.

7.1.3.11 These emergency provisions prevent the expiry of guardianships, or section 47 certificates, through want of being able to get an application through court, or to get a relevant health professional (normally a doctor) to authorise the certificate. A medical practitioner and a specialised mental health doctor are required to complete reports for guardianships as well as mental health officers.

7.1.3.12 The factors which have been taken into consideration are the availability of the courts, the Office of the Public Guardian and relevant health professionals. In the first reporting period the courts were only processing urgent interim guardianship cases, meaning that guardianship cases were likely to expire before the renewal application could reach court. The courts are now processing guardianship cases as business as usual.

7.1.3.13 The Office of the Public Guardian has increasing numbers of staff working in the office, as well as those working from home. There has also been adaptation by all concerned, including health professionals, in dealing with cases using digital and remote methods.

7.1.3.14 The courts are processing guardianship work as business as usual and advise they are able to cope with any extra work that suspending the guardianship provisions might bring. There remain challenges in obtaining medical and mental health officer reports to support adults with incapacity applications and renewals.

7.1.3.15 The Mental Welfare Commission requested that these provisions were added into the emergency legislation. It advised of the difficulties professionals are experiencing and reporting in being able to 'see' people in order to make assessments for guardianships and for section 47 certificates. It stated that there remains a need to balance public health concerns, especially with regard to resurgence of the virus, with all other considerations (including social distancing measures).

7.1.3.16 The Office of the Public Guardian reports that the number of renewals is 18% of the total number of guardianships since they began business in 2001 and implies that a large percentage of guardianships will have been extended when they would have normally expired without renewal. Although there are no statistics available, it is possible that the same applies to certificates to authorise medical treatment under section 47 of the Adults with Incapacity (Scotland) Act 2000. The principle in section 1(3) of the Adults with Incapacity (Scotland) Act 2000 is that an intervention shall be the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention. Under these amendments, they will continue for the period the emergency provisions are switched on.

7.1.3.17 The practical view of the availability of doctors and mental health officers to complete reports is a mixed one. Some Health and Social Care Partnerships were of the view that the provisions could expire, as they had resources in place and others wanted to extend the provisions, based on a co-ordinated and gradual approach to full recovery.

7.1.3.18 Given the mixed view on the availability of health professionals, the improved capacity of the courts and Office of the Public Guardian and the serious human rights considerations in extending these provisions for another six months, Ministers have decided to suspend these provisions from 30 September 2020. The Coronavirus (Scotland) Act 2020 (Suspension: Adults with Incapacity) Regulations 2020 (SSI 2020/267)[54] were laid in Parliament on 1 September 2020 and came into force on 30 September 2020. Should circumstances arise post 30 September 2020 and during the life of Part 1 of the first Scottish Act, where they might be required, for instance because of resurgence of the virus, the provisions can be revived, however a further SSI is required to do this, which would be subject to scrutiny by the Parliament.

7.1.4 Section 5 and schedule 4, Part 4 - Extension of time limits

Description of Provision

7.1.4.1 The provision suspends certain time limits contained in the Criminal Procedure (Scotland) Act 1995 for certain set periods of time i.e. the suspension of the relevant time limits are not for indefinite periods of time.

7.1.4.2 The provisions have the effect of increasing the maximum time period that an accused person can be held on remand prior to trial, together with other time limits for progressing a criminal case including the maximum wait prior to trial where the accused is not in custody. This may have an impact on the rights guaranteed by Articles 5(3) and 6(1) of the of the ECHR. However, the Scottish Government considers that these increases are compatible with the rights under Articles 5(3) and 6(1) to a trial within a reasonable time. The increases are necessary to address the disruption to the justice system that is already being caused by coronavirus.

7.1.4.3 In any individual case, where an accused is brought before the court for a custody hearing, in determining whether to grant bail, the court requires to consider the accused's Article 5 and 6 rights in deciding whether it is appropriate to grant bail. Furthermore, an accused person can, at any time, apply to the court for a bail review under section 30 of the Criminal Procedure (Scotland) Act 1995, to enable the court to determine whether their continued detention is justified. The courts remain subject to the requirement to ensure that there is a fair and public hearing within a reasonable time. These safeguards are relevant to ensuring that these provisions are proportionate.

Operation of Provision in Reporting Period

7.1.4.4 The time limits to which the provision applies are: those under section 65 of the Criminal Procedure (Scotland) Act 1995 which sets various time limits in respect of trials under solemn procedure; section 136, which requires that proceedings in summary cases must commence within six months of the alleged offence; section 147, which makes provision for summary procedure in cases where the accused has been held on remand; and section 52T, which applies the custody time limits in sections 65 and 147, where the accused is detained in hospital because of an assessment order or a treatment order. The provision applies automatically in respect of any criminal case where one of those time limits was in effect on the date when the Act was commenced, or began after the Act commenced.

Factors Considered to Determine Use and Continued Necessity

7.1.4.5 The court system continues to be under significant pressure with a backlog of cases building. Steps are being taken to seek to address this. High Court trials restarted in July (20 July in Edinburgh and 21 July in Glasgow) in new formats designed to ensure a safe and secure process for all involved, in compliance with public health guidelines on physical distancing and hygiene.

7.1.4.6 In addition, the Scottish Government has provided funding of £5.5 million to SCTS to establish the ground-breaking solution of remote jury centres to rapidly increase the number of Scottish High Court trials. The use of these jury centres, based in cinema complexes - with the availability of reliable and modern technology, coupled with the ability to provide nationwide participation and a streamlined contractual process - is regarded as the most credible and deliverable proposition to take forward jury trials in the current COVID-19 context. The first trials will got underway on 28 September 2020 in Edinburgh, and will get underway from 12 October 2020 in Glasgow.

7.1.4.7 The move towards remote jury centres will assist in preventing further backlogs building up in the High Court, but further work will continue to be required to address the existing backlog and the serious issues also present in Sheriff and Jury cases.

7.1.4.8 Summary criminal trials will return in some volume over time, with lower case loadings (trials will be scheduled in reduced numbers to ensure physical distancing is maintained). This of course does not mean the summary courts will be dealing with the backlog of cases that has built up, but will help ensure an improved flow of cases to reduce the rise in the backlog.

7.1.4.9 Justice Analytical Services is working with SCTS to collect data to monitor the backlog of cases in the courts, which will help inform future assessments of the continuing need for this extension of time limits. However, 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.

7.1.4.10 The Justice Board for Scotland, which brings together senior leaders from Scotland's main national justice system organisations, has established a Criminal Justice Board to co-ordinate COVID-19 recovery activity across policing and justice, including in the criminal courts. The Board meets every two weeks to direct and monitor progress and ensure a whole system overview of the work underway.

7.1.4.11 The Scottish Government keeps under review the necessity for the extended time limits contained within Part 4 of schedule 4 of the first Scottish Act. It is however the case that while some courts are operating in a way they were not at the time of the legislation being passed in April 2020, there is a significant backlog of cases continuing to grow as the court system is some considerable way off returning to its normal operation. This is also within the context that crime levels are back to near pre-COVID-19 levels. Even once courts are operating more normally, a backlog of cases will exist whereby the operation of extended time limits will potentially be necessary. At this time, the Scottish Government considers the extended time limits continue to be necessary with an accused's person rights continuing to be protected through the operation of the system of bail reviews which an accused person can seek at any time under section 30 of the Criminal Procedure (Scotland) Act 1995 if information was provided material to the decision that was not available when the accused was remanded. This can be used where, for example, the continuing impact on the operation of the courts means timings for when a case will be heard have changed.

7.1.5 Section 5 and schedule 4, Part 8 - Release of prisoners

Description of Provision

7.1.5.1 The provision allows that the Scottish Ministers may, by regulations, provide that a person who falls within a class of persons specified in the regulations is to be released from prison early.

Operation of Provision in Reporting Period

7.1.5.2 The Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/138)[55] and the Criminal Justice (Miscellaneous Temporary Modifications) (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/137)[56] were made by Scottish Ministers and came into force on 4 May 2020, and operated for 28 days until 1 June 2020. As such the powers were applied in the first and second reporting period, but have not been utilised during the third reporting period.

7.1.5.3 Details of the eligibility criteria and exclusions applied, and statistics on the operation of the 4 May to 1 June 2020 process, were included in the reports on the first and second reporting periods.

Factors Considered to Determine Use and Continued Necessity

7.1.5.4 The Scottish Government considers that the May/June release process was a proportionate measure which helped deliver the necessary and timely reduction in the prison population. This provided the necessary capacity and operational flexibility for the Scottish Prison Service (SPS) to manage the needs of prisoners to shield or self-isolate, as well as protecting the health of prison staff, and managing the higher levels of staff absence caused by ill-health and health protection measures.

7.1.5.5 However, given the potential for a future resurgence of the virus and a possible resultant need for greater restrictions and protective measures within the prison system (as have already been necessary on a local basis on a number of occasions), and the potential for increases in the prison population, it may become necessary to utilise these powers again to maintain safe and effective operations of prisons, and protect the health of prison staff and prisoners. The Scottish Government will continue to engage with SPS in relation to the potential use of these powers, as one aspect of wider ongoing discussions of the impact of coronavirus on the prison system, and the safe management of the prison population. The Scottish Government will also liaise with other justice sector stakeholders who are most impacted by the prisoner release measures.

7.1.5.6 As with the previous use of this power, any decisions on future release of additional prisoners would be made with regard to the legislative requirements contained in the first Scottish Act, and wider public safety and human rights concerns. It would require the production of regulations specifying the eligibility criteria and handling of the process, which would be laid before Parliament for scrutiny and approval.

7.1.5.7 The first and second two-monthly reports on the Coronavirus Acts have included detail on the factors considered to determine the previous use of these powers, including the engagement with wider stakeholders for the planning and delivery of the release process, and the particular consideration given to equality, human rights, and domestic abuse impacts.

7.1.6 Section 7 and schedule 6, Part 2 – Freedom of Information

Description of Provision

7.1.6.1 Prior to the repeal of the provisions mentioned below, the provisions extended the statutory deadlines under the Freedom of Information (Scotland) Act 2002 (FOISA) for responding to Freedom of Information (FOI) requests and reviews by an additional 40 working days; gave the Scottish Ministers the power, by direction, to specify circumstances where a Scottish public authority could extend that deadline; gave the Commissioner discretion to decide that, where failure to comply with a deadline was due to the effect of coronavirus, an authority had not failed to comply; and enabled the Commissioner and other Scottish public authorities to issue notices by electronic means.

Operation of Provision in Reporting Period

7.1.6.2 Paragraphs 3 and 4 of schedule 6 extended the deadlines for responding to FOI requests and reviews by an additional 40 working days. The extension applied to both new requests and those outstanding when the first Scottish Act came into force, but the requirement within FOISA to comply promptly with requests was otherwise unchanged. These provisions were repealed by the second Scottish Act and therefore were not in operation in this third reporting period.

7.1.6.3 The power of the Scottish Ministers, as conferred by paragraph 5 of schedule 6, was repealed in the first reporting period and therefore was not in operation in this third reporting period.

7.1.6.4 Where an appeal is made to the Commissioner in respect of a failure to comply with a relevant deadline, paragraph 6 of schedule 6 gives the Commissioner discretion to decide that a Scottish public authority has not failed to comply in certain circumstances. As passed, the Commissioner could exercise this discretion where the failure was due to the effect of coronavirus. The second Scottish Act amended paragraph 6 so that the Commissioner could also take into account the effects of repealing paragraphs 3 and 4. It also amended paragraph 6 so that the public interest in prompt compliance is the primary consideration in deciding whether a failure was reasonable in all circumstances. Information in respect of the use of this element of the provision will be held by the Commissioner.

7.1.6.5 Paragraph 7 of schedule 6 allows the Commissioner and other Scottish public authorities to issue notices by electronic means. Information in respect of the use of this element of the provision will be held by the Commissioner and by individual authorities.

Factors Considered to Determine Use and Continued Necessity

7.1.6.6 Physical distancing measures remain in place and at the present time home-working remains the default position for most office-based workers in Scotland. When circumstances do allow the reopening of more indoor office spaces, this will take place on a phased basis to ensure safety. Therefore, Scottish public authorities may continue to experience significant disruption that may impact on their ability to respond to FOI requests for some time, so the power at paragraph 6, conferring discretion on the Commissioner, remains necessary.

7.1.6.7 The Commissioner's office is likely to require to operate a level of remote working for some time, so the power at paragraph 7, to issue notices electronically, remains necessary to enable decisions to be issued and to reduce disruption to the Commissioner's statutory functions. Other authorities are likely to benefit in the same way.

7.1.7 Section 8 and schedule 7, paragraphs 1 to 5 - Social security

Description of Provision

7.1.7.1 These provisions relax timescales which apply to clients seeking (and Social Security Scotland making) a redetermination, and clients bringing an appeal before the First-tier Tribunal for Scotland, where normal timescales cannot be met for reasons related to coronavirus. Other provisions modify timescales for making applications where these have not been able to be met directly as a result of coronavirus.

Operation of Provision in Reporting Period

7.1.7.2 Where a client has cited disruption caused by coronavirus as the reason for a late application or late request for an appeal or redetermination, Social Security Scotland has used the powers to allow the late application or request to be considered. There have also been occasions where Social Security Scotland has extended its timescales for redetermination where an appeal was received after the 31 day deadline for submission had passed.

Factors Considered to Determine Use and Continued Necessity

7.1.7.3 The key factor in the continuing necessity of these provisions is the continued disruption created by coronavirus. Where this is likely to have an impact on people's ability to make applications for benefits in timely fashion or make a request for a redetermination or appeal, including to gather and receive supporting information, or where it could have an impact on the timing of their award of a qualifying benefit, there will be a need for these provisions. Similarly, where the continued disruption created by coronavirus impacts on Social Security Scotland's ability to process redeterminations, or on a clients' ability to gather information requested in support of their redetermination, the extended timelines for redetermination should remain in place.

7.1.7.4 Social Security Scotland is however required to make the redetermination as soon as reasonably practicable within the extended redetermination period; this provides a safeguard to ensure that clients' rights to receive a decision as quickly as possible and subsequently appeal rights to the First-tier Tribunal, are respected.

7.1.7.5 Evidence suggests that these provisions, including provisions to extend the timescales allowed for re-determinations and appeals, are of benefit to clients – for example, clients have cited delays in obtaining evidence that they wish to submit.

7.1.7.6 During the period in which provisions have been in force, Social Security Scotland has extended the timescales for a re-determination on 18 occasions, taking an average 30 days to complete these re-determinations. Clients are citing COVID-19 as the reason for not being able to provide evidence sooner and on these occasions. Social Security Scotland is working with the clients by extending and ensuring their application is determined as quickly as possible. Social Security Scotland is only aware of one occasion where an appeal was received after the 31 days and the Tribunal accepted this appeal sighting COVID-19 as a factor for accepting the late appeal.

7.1.7.7 Social Security Scotland's continuing review of the operation of the provisions in the period indicates that these extensions are providing some benefit to clients, in helping them access their rights despite the impact of coronavirus. The latitude for extending timescales is only being used when absolutely necessary as Social Security Scotland's aim remains to process cases within target deadlines whenever possible. However, Social Security Scotland is of the view that there remains a need to have these extensions in place as a contingency against further disruption to services and clients' circumstances, for example, if there was a resurgence of the virus.

7.2 Second Scottish Act

7.2.1 Section 2, schedule 1, Part 1: Student residential tenancy: termination by tenant

Description of Provision

7.2.1.1 This makes provision in relation to tenancies for students in halls of residence and Purpose Built Student Accommodation (PBSA). There is a 7 day notice period for those who have already entered into a student residential tenancy agreement and have occupied the property; and a 28 day notice period for those who have already entered into a student residential tenancy but have not yet occupied the property and the agreement was entered into while the second Scottish Act is in force. Students can only terminate tenancies for a reason relating to coronavirus.

Operation of Provision in Reporting Period

7.2.1.2 The Scottish Government understands from informal consultation with stakeholders that the seven day notice period has been utilised by students who had returned home prior to lockdown and were no longer occupying their property, and by students who wished to return home prior to the end of their contract. This provision has allowed students to end their contract earlier than existing arrangements would have allowed had these provisions not been in place. This is of particular importance given that colleges and universities adopted alternative learning models from face to face teaching in response to coronavirus.

7.2.1.3 The 28 day notice period has given students looking to find suitable accommodation for the next academic year reassurance that, should restrictions continue or more restrictive measures be re-introduced, either locally or nationally, that prevent students from taking up their accommodation as planned, they will not be held liable to pay for accommodation they are not able to use.

7.2.1.4 The Scottish Government has consulted the Student Accommodation Group to develop and issue a survey to accommodation providers to gather further evidence on the extent of use of the provisions ahead of future reporting periods, and to inform ongoing monitoring of implementation of the provision. This survey has now been agreed with the Student Accommodation Group and will be issued shortly after the end of this third reporting period.

Factors Considered to Determine Use and Continued Necessity

7.2.1.5 The provisions remain necessary to ensure that should restrictions continue or more restrictive measures be re-introduced, either locally or nationally, that prevent students from taking up their accommodation as planned, they will not be held liable to pay for accommodation they are unable to use.

7.2.1.6 Student accommodation providers set their own contract terms within tenancy agreements with students and terms will vary across the sector. Given the nature of student residential tenancies, contracts typically run for the entire length of the contract, with no provision for early release. The continuation of the notice to leave periods will be necessary to ensure students are not disadvantaged by any further measures required in response to coronavirus.

7.2.1.7 The Scottish Government assessed the potential impact of these provisions on human rights, children's rights and equalities prior to the introduction of the legislation and continues to keep these rights under review when considering their continued necessity. The Scottish Government's view is that the temporary nature of the provisions continue to strike an appropriate balance between the rights of student accommodation providers and the rights of the students during the pandemic.

7.2.2 Section 2, schedule 1, Part 2: Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears

Description of Provision

7.2.2.1 The provisions provide Scottish Ministers with the power to specify pre-action requirements for private landlords seeking to end a private tenancy due to rent arrears, where those arrears relate to the period during which paragraph 4 of schedule 1 of the second Scottish Act is in force. The First-tier Tribunal for Scotland (Housing and Property Chamber) must take account of the extent to which a landlord has complied with the pre-action requirements when deciding whether it is reasonable to grant an order for repossession.

Operation of Provision in Reporting Period

7.2.2.2 The provisions were in force during the reporting period. The regulation making powers were used in this reporting period. The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020[57] (SSI 2020/304) came into force on 30 September 2020.

Factors Considered to Determine Use and Continued Necessity

7.2.2.3 Schedule 1 of the first Scottish Act makes most grounds for repossession in the private rented sector discretionary, including for rent arrears. This temporarily changed the original position whereby the First-tier Tribunal for Scotland (Housing and Property Chamber) must grant a repossession order if the level of arrears is in accordance with the criteria laid out in the relevant legislation. This change ensures that the Tribunal considers the reasonableness of making a repossession order during the coronavirus outbreak.

7.2.2.4 The introduction of regulations under the provision temporarily set pre-action requirements that will apply where all or part of the rent arrears have originated in the period during which paragraph 4 of schedule 1 of the second Scottish Act is in force. The extent to which a landlord has complied with these requirements must be taken into account by the First-tier Tribunal for Scotland (Housing and Property Chamber) when deciding whether it is reasonable to grant a repossession order.

7.2.2.5 The introduction of regulations formalises the steps landlords should take in relation to working with tenants to manage arrears prior to seeking repossession during the coronavirus pandemic.

7.2.2.6 The Scottish Government has assessed the potential impact of these provisions on human rights, children's rights and equalities and considers the introduction of pre-action requirements will have a positive impact across those with protected characteristics including women and disabled people who may have been impacted by the consequences of coronavirus. We also consider these measures support the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights by ensuring appropriate safeguards are in place to prevent unnecessary eviction.

7.2.3 Section 2, schedule 1, Part 7: Care homes

Description of Provision

7.2.3.1 These provisions make changes to the Public Services Reform (Scotland) Act 2010 (the '2010 Act') for a limited time period to allow for the issuing of Emergency Directions and Emergency Intervention Orders.

7.2.3.2 Emergency Directions - Health Boards can make specific asks of care home providers where they believe there is a material risk to health within the care home due to coronavirus. These asks must relate directly to reducing the risk to health. Where the Health Board believes they have not been complied with, it can, subject to the court's approval, take steps to ensure they are carried out.

7.2.3.3 Emergency Intervention Orders - Ministers may apply to the court to appoint a nominated officer to temporarily take over the operation of a care home if there is a serious risk to life, health or wellbeing within the home. Where there is an imminent and serious risk to life or health, Ministers can exercise the powers before making an application to the court.

Operation of Provision in Reporting Period

7.2.3.4 Paragraph 16 of schedule 1 adds temporary modifications to Part 5 of the 2010 Act, adding in sections 63A and 63B.

7.2.3.5 Section 63A requires that where the Health Board considers that, for a reason relating to coronavirus, there is a material risk to the health of persons at the specified accommodation, the Health Board may issue a direction to the service provider to take specific steps. Section 63B gives Health Boards the power to act where a section 63A direction has not been complied with.

7.2.3.6 Although these powers have been commenced and are available, they have not been used in this reporting period. A Health Board has not yet been required to issue a direction to a care home using this legislation. Consequently, Health Boards have not had to use the power to act when said direction has not been complied with.

7.2.3.7 Paragraph 17 of schedule 1 inserts sections 65A and 65B into the 2010 Act.

7.2.3.8 Section 65A provides that Scottish Ministers may apply to a Sheriff Court or Court of Session for an Emergency Intervention Order in respect of a care home service provided at a care home which is stated in the application.

7.2.3.9 Section 65A subsection (2) sets out that an Emergency Intervention Order is an order which authorises the Scottish Ministers to nominate a person to act as a nominated officer. The nominated officer is authorised to (1) enter and occupy the accommodation (2) direct the provision of the care home service at the accommodation and (3) do anything that the officer considers necessary to ensure that the care home service is provided to an appropriate standard. It also requires the providers of care to comply with any direction given by the nominated officer in relation to the provision of care.

7.2.3.10 Subsection (7) provides that the court must make an Emergency Intervention Order if it appears there is, due to coronavirus, a serious risk to the life, health or wellbeing of people at the care home.

7.2.3.11 As of yet, Scottish Ministers have not made an application to the courts for an Emergency Intervention Order in relation to coronavirus under these powers. The Care Inspectorate updates Ministers of any care home providers with which they have serious concerns and provide regular updates to them to enable emergency action to be taken if required.

7.2.3.12 Section 65B provides that Scottish Ministers may make further provisions to the Emergency Intervention Orders by regulations. Those regulations are subject to the 'made affirmative' procedure and will last for 28 days unless they are laid before Parliament and approved.

7.2.3.13 Powers under section 65B were used in the previous reporting period and as a result, the Care Homes Emergency Intervention Orders (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/201) [58] came into force on 3 July 2020. They make further provisions to the emergency intervention powers set out under section 65A, including: enabling the nominated officer to delegate actions to others; allowing Scottish Ministers to obtain information from relevant bodies; and limiting claims for compensation.

7.2.3.14 No further regulations have been made under powers in section 65B during this third reporting period.

Factors Considered to Determine Use and Continued Necessity

7.2.3.15 Scotland's care infrastructure and the robust inspection regime of the Care Inspectorate is such that when these measures were implemented it was considered that they would only need to be exercised in exceptional circumstances. Therefore, the fact the powers have not been used, does not mean that the rationale behind the implementation of these measures has ceased to be valid.

7.2.3.16 The legislation builds on established powers and ensures that immediate action can be taken if continuity of care is jeopardised. Having these powers available permits Health Boards and Scottish Ministers to take more responsive action if justified and necessary.

7.2.3.17 Additionally, the availability of these powers enables Ministers to act immediately to safeguard the life, health and wellbeing of care homes residents – provided the tests for intervening are met. The nature of the pandemic means circumstances can quickly change and these powers mean Ministers are in a position to act swiftly.

7.2.3.18 While the virus is still present, and while there is the possibility of resurgence of the virus, it is the opinion of the Scottish Government that these powers should remain in place as they provide assurance to those who depend on care services, their families, and the staff that deliver care, that additional oversight and support is available in the rare circumstances that it may be required. The assurance these emergency powers provide is considered to be necessary and proportionate.

7.2.4 Section 2, schedule 1, Part 8: Power to purchase care home services and care at home providers

Description of Provision

7.2.4.1 The provisions in section 2 and paragraphs 18 to 20 of schedule 1, Part 8 set out temporary powers available to Local Authorities to purchase, by agreement, a care home or care at home services. It also sets out the powers available to Health Bodies (a Health Board, the Common Services Agency and Health Improvement Scotland) to acquire a care home, by agreement, on behalf of Scottish Ministers.

7.2.4.2 Circumstances where this can take place are where, for a reason relating to coronavirus: the provider is in serious financial difficulty; the Local Authority or health body is satisfied there is a threat to the life, health or wellbeing of people receiving the service; or where a provider has recently stopped providing the services.

7.2.4.3 These are for voluntary acquisitions only and do not grant powers for compulsory purchases.

7.2.4.4 Paragraph 19 also provides that the health body must comply with a written direction by Scottish Ministers.

Operation of Provision in Reporting Period

7.2.4.5 Paragraph 18 provides that a Local Authority may acquire, by agreement, a care home service, a care at home service and any asset or liability of those services under the circumstances outlined in paragraph 20.

7.2.4.6 Paragraph 19 provides that a health body (a Health Board, the Common Services Agency and Health Improvement Scotland) may acquire, by agreement, a care home service and any asset or liability of that provider on behalf of Scottish Ministers under the circumstances in paragraph 20.

7.2.4.7 Paragraph 19 also provides that the health body must comply with a written direction by Scottish Ministers. Directions must be published and they can be varied or revoked by a subsequent direction.

7.2.4.8 Paragraph 20 describes the circumstances in which the Local Authority can acquire the provider of a care home or care at home services (or any asset or liability of that provider) and a health body can acquire the provider of a care home service (or any asset or liability of that provider). These are set out in 7.2.4.2 above.

7.2.4.9 These powers have not been used in the reporting period. Neither a health body or a Local Authority has acquired a care home, nor has a Local Authority acquired a care at home service, under these powers. Scottish Ministers have not directed a health body to acquire a care home under these powers.

Factors Considered to Determine Use and Continued Necessity

7.2.4.10 In addition to the factors that were considered as set out at sections 7.2.3.15 to 7.2.3.17 above, the following factors were also taken into consideration in the review. The legislation builds on established powers and ensures that immediate action can be taken if continuity of care is jeopardised. These emergency provisions create powers in relation to the acquiring of care homes and care at home services. These types of transactions require detailed due diligence exercises to be carried out as well as practical discussions around matters such as budget, transition, employment considerations and property legalities. These matters require time. If action is required, the extension of these emergency provisions would also provide much clarity and benefit.

7.2.4.11 Additionally, the availability of these powers enables a Local Authority or a relevant health body to act to acquire a care home service or a care at home service in the circumstances set out in paragraph 7.2.4.2 above and enables a Local Authority or relevant health body to act to safeguard the interests of the residents of a care home. Equally, it also ensures a Local Authority can quickly put in place continuity of care for those who receive a care at home service.

7.2.4.12 While coronavirus is still present in the population and there is still the possibility of resurgence of the virus, the safety net and assurance these powers provide is still needed.

7.2.5 Section 2 schedule 1, Part 9: Care homes: further provisions

Description of Provision

7.2.5.1 Section 2, schedule 1, Part 9 - care homes: further provisions, describes two provisions, which extend on the reporting work already undertaken by the Care Inspectorate in relation to care homes for the duration of the emergency period. The provisions introduce the publication of two reports that are laid before the Scottish Parliament: a fortnightly report on inspections of adult care homes; and a weekly report on the number of deaths notified by care home service providers. Both provisions were introduced following non-Government amendments at Stage 2 of the Bill.

Operation of Provision in Reporting Period – Reporting on Care Home Services Inspections

7.2.5.2 Section 53 of the Public Services Reform (Scotland) Act 2010 ('the 2010 Act') provides that the Care Inspectorate may inspect registered care services, and sets out the purpose of inspections. Section 2, schedule 1, Part 9 of the second Scottish Act adds section 53A to the 2010 Act, requiring that the Care Inspectorate must lay a report before Parliament every two weeks during the emergency period. These reports must set out which care home services it has inspected as well as the findings of those inspections.

7.2.5.3 This provision has been exercised from the date that the second Scottish Act came into force, with the first of the fortnightly reports being laid before Parliament on 10 June 2020. The Care Inspectorate continues to lay this report before Parliament every second Wednesday. The reports are also available on the Care Inspectorate website[59].

7.2.5.4 The report findings now include indicators across three themes specific to coronavirus. These new quality indicators are now augmented in the Care Inspectorate's quality framework for Care Homes for Adults and Older People, and are also now included in the fortnightly report on inspections as follows: people's health and wellbeing are supported and safeguarded during the COVID-19 pandemic, infection control practices support a safe environment for both people experiencing care, and staff, and staffing arrangements are responsive to the changing needs of people experiencing care.

Factors Considered to Determine Use and Continued Necessity

7.2.5.5 The power has been used in this reporting period. In implementing this provision, the Care Inspectorate has had to develop and implement new processes to comply with the requirements. There have been clear advantages in taking a more targeted, intelligence-led and risk-based approach, working collaboratively with Health and Social Care Partnerships, clinical oversight teams, public health teams and Healthcare Improvement Scotland in both sharing information to prioritise services for inspection, and in undertaking the inspections themselves.

7.2.5.6 Where the Care Inspectorate has identified serous concerns in services, it has returned quickly to the care home to check and report on improvements. This has provided powerful evidence of the value of robust, independent scrutiny and assurance. This process has also been helpful in getting information into the public domain more quickly to provide assurance to Ministers, Parliament and the public at a time where levels of concern about the safety and wellbeing of care home residents is understandably high. It has enabled the Care Inspectorate to highlight more quickly the valuable work it has been doing.

7.2.5.7 The reports which are provided to the Scottish Parliament present a useful overview of services inspected and their findings, providing the Care Inspectorate with the opportunity to make further enquiries if needed. The nature of reporting under the second Scottish Act requires a quick turnaround. However, the Care Inspectorate is prepared to continue with the current approach as long as is required.

7.2.5.8 There continues to be an increased level of interest and scrutiny of care home issues. The operation of the provision in the reporting period was proportionate, and the status of the provisions is appropriate.

Operation of Provision in Reporting Period - Reporting on Coronavirus Deaths in Care Homes

7.2.5.9 Section 2, schedule 1, Part 9 of the second Scottish Act inserts section 79B into the Public Services Reform (Scotland) Act 2010 ('the 2010 Act'), which introduces new duties about the reporting of deaths in care homes. Section 79A of the 2010 Act requires that care home service providers must provide certain information to the Care Inspectorate each day in relation to the numbers of deaths which have occurred in a care home service, whether caused by, or attributable to, coronavirus or not. The Care Inspectorate must prepare a report setting out this information and share it with the Scottish Ministers.

7.2.5.10 This provision has been exercised from the date that the second Scottish Act came into force, with the first of the weekly reports being laid before Parliament on 10 June 2020. This contained data from 25 May 2020 onwards. The Scottish Ministers continue to lay this report before the Scottish Parliament each Wednesday and information relating to this is published on the Scottish Government website[60].

Factors Considered to Determine Use and Continued Necessity

7.2.5.11 The power has been used in the reporting period. Most care homes have continued to notify the Care Inspectorate of deaths promptly. A positive outcome of having this specifically set out in the legislation is to remind care homes of the importance of reporting during this period. The Scottish Government and the Care Inspectorate and others have depended on accurate and timely reporting from providers.

7.2.5.12 National Records of Scotland (NRS) publish official statistics on deaths in Scotland, including deaths related to coronavirus in care homes. These statistics are sourced directly from death certificates and are the most accurate record of deaths.

7.2.5.13 Although NRS data and Care Inspectorate management information data on deaths in care homes are similar, they differ mainly due to the location of death (i.e. some care home residents who die in hospital are also included in the statistics reported to the Care Inspectorate from care home services). There are also different time lags between the date of death and the date of registration, or date of notification to the Care Inspectorate.

7.2.5.14 Nevertheless, the Care Inspectorate's view is that these notifications of death will be a key element in its ongoing monitoring for any resurgence of coronavirus.

7.2.5.15 These provisions are designed to provide assurance to Scottish Ministers, to the Scottish Parliament, the public and health and social care workforce, that the quality of care services is being properly scrutinised and supported during the emergency period. Care homes for older people are of a particular focus during the pandemic, although the provisions are relevant to all registered care home services.

7.2.5.16 The operation of the provision in the reporting period to provide for the weekly reporting has offered greater transparency on the number of deaths in these settings, and coronavirus related deaths in care homes while the threat from the virus remains. The operation of the provision has been proportionate and the status is appropriate.

7.2.5.17 The Care Inspectorate, as the independent scrutiny and improvement body responsible for the regulation and inspection of care and support services in Scotland, is subject to the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.

7.2.5.18 The Care Inspectorate has published its Equality Outcomes, Mainstreaming Report and Action Plan[61], setting out its approach to Equality Impact Assessments, obligations as corporate parents, and other duties.

7.2.5.19 The Scottish Government will continue to keep the impact of the operation of these provisions under review.

7.2.6 Section 2 and schedule 1, Part 10 - Marriage and civil partnership

Description of Provision

7.2.6.1 Schedule 1, Part 10, paragraph 24 requires the Scottish Ministers, in conjunction with the Registrar General of Births, Deaths and Marriages for Scotland, to take such steps as they consider necessary to ensure that the solemnisation of marriages and registration of civil partnerships continue to be available in Scotland whilst paragraph 24 is in force. It specifies that the steps taken must ensure that a person's right to marry, which is protected by Article 12 of the ECHR, is not disproportionately interfered with for reasons relating to coronavirus. It also requires the Scottish Ministers to report on the steps taken and on the number of marriages and civil partnerships that have taken place.

Operation of Provision in Reporting Period

7.2.6.2 The Scottish Ministers and the Registrar General have taken steps to ensure that the solemnisation of marriages and the registration of civil partnerships continues to be available in Scotland during the emergency period.

7.2.6.3 The Scottish Government has gradually eased restrictions from March until the present, enabling more marriage ceremonies and civil partnership registrations to take place safely both indoors and outdoors with limited numbers.

7.2.6.4 From 15 July 2020, as at the time of the preparation of this report, the persons participating in a ceremony or registration can come from any number of households and should constitute no more than 20 people. The limit on numbers includes the couple, the two witnesses, guests, and anyone employed by the couple. It excludes any staff employed by the venue, and since 4 August 2020, it also excludes the registrar or celebrant. From 28 September 2020, as at the time of the preparation of this report, where a ceremony or registration is taking place in a private dwelling, the persons participating should include no more than six people, being the couple, the registrar or celebrant, the witnesses and, if required, an interpreter.

7.2.6.5 During the current reporting period, it has been necessary to put in place local advice and measures which would have impacted on some marriages and civil partnerships taking place in the specified areas. The Scottish Government published the 'Coronavirus (COVID-19): local advice and measures'[62] which includes information for those participating in marriages and civil partnerships during periods of local restrictions.

7.2.6.6 The Scottish Government also published the 'Coronavirus (COVID-19): wedding ceremonies and civil partnership registrations' guidance[63] on its website to help people planning to get married or form a civil partnership in Scotland, those responsible for venues that may host such events, and the celebrants who conduct them. Guidance, available on the NRS website[64], has been issued by the Registrar General for those intending to get married or enter a civil partnership during the emergency period. The Registrar General has also issued guidance to Local Authority registrars, and measures have been put in place in accordance with guidance to re-open some registration offices.

7.2.6.7 The Scottish Government engages with religious and belief bodies on the impact of the pandemic, including the impact on marriages and civil partnerships. The easing of restrictions has been of particular benefit to persons of faith. For couples for whom cohabitation before marriage is incompatible with their faith, the easing of restrictions has enabled them to marry and to begin their married life together. The easing of restrictions on access to places of worship and on the number of persons permitted to attend ceremonies has benefitted members of those religions that have a requirement or preference for ceremonies to take place indoors in a place of worship, and members of those religions that require more people to be present at a ceremony than the legal minimum of five.

7.2.6.8 The Scottish Government will continue to engage with key stakeholders to consider any impact of the restrictions on marriage and civil partnership on rights and equality.

7.2.6.9 The Scottish Government published the 'Coronavirus (Scotland) (No.2) Act 2020: Report on Marriage and Civil partnership'[65] on 17 August 2020. The report covered the reporting period from 27 May to 31 July 2020. At the time of reporting, NRS was aware of 613 marriages having been solemnised and 7 civil partnerships having been registered in that period. Further marriages and civil partnerships may have taken place which at the time of reporting had not yet been entered on the IT system due to a delay between the occurrence of the event and the return of the schedule.

7.2.6.10 In due course, a further report on marriages and civil partnerships will be sent by the Scottish Ministers to Parliament. In line with schedule 1, Part 10, paragraph 24, this will provide information on the number of marriages solemnised and civil partnerships registered during the reporting period from 1 August to 30 September 2020.

7.2.6.11 Updated figures for the last reporting period from 27 May to 31 July 2020 will also be provided in this report.

Factors Considered to Determine Use and Continued Necessity

7.2.6.12 In view of the duties paragraph 24 places on the Scottish Ministers and the Registrar General, the provision continues to be necessary.

7.2.7 Section 3 and schedule 2, Part 1 - Criminal Justice: Fixed Penalty Notices under the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020

Description of Provision

7.2.7.1. Schedule 2, Part 1, paragraph 7 amended regulation 9 of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020[66] to change the age to 18. As a consequence, a police officer will only be able to issue a Fixed Penalty Notice under these regulations where the officer reasonably believes that the person is aged 18 or over.

Operation of Provision in Reporting Period

7.2.7.2. Police Scotland publishes data on the enforcement of the coronavirus legislation[67].

7.2.7.3. The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 have now been revoked and replaced by The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020[68]. Regulation 16 of the new regulations continues the policy that a police officer can only issue a Fixed Penalty Notice where the officer reasonably believes that the person is aged 18 or over.

Factors Considered to Determine Use and Continued Necessity

7.2.7.4. This provision amended the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. So long as these regulations remained in force and allowed Fixed Penalty Notices to be issued, it was appropriate to continue this provision in order that police officers could only issue a Fixed Penalty Notice under these regulations where the officer reasonably believed that the person was aged 18 or over.

7.2.8 Section 5 and schedule 4, Part 4 - Care services: giving of notices by the Care Inspectorate

Description of Provision

7.2.8.1 This provides the Care Inspectorate with powers to send formal notices to registered care service providers by electronic means, in addition, to normal post, for the duration of the emergency period.

7.2.8.2 This power also enables notice to be given to a person providing, or seeking to provide, a care service and covers:

  • an individual;
  • a body corporate, to a director, secretary or other similar officer of that body or to a manager (or other similar officer) of the care service provided by that body, or
  • a firm, to a partner of that firm.

7.2.8.3 Under normal circumstances, formal notices are issued via postal services or are hand delivered. Presently, this is not possible due to the Care Inspectorate following public health guidance, and staff not having access to premises to carry out this function or printing services. This provision has enabled the Care Inspectorate to issue any notice by email, or to publish more generally on a website, when required, thereby expediting the process, at a time when it is increasingly important to deliver notices in a timely, accessible and safe manner.

Operation of Provision in Reporting Period

7.2.8.4 As of 31 August 2020 this power has been used by the Care Inspectorate in relation to 911 matters for the issuing of notices relating to registration, variation of conditions of registration, and enforcement action.

7.2.8.5 This has been seen as an important legislative change from the point of view of the Care Inspectorate. During the coronavirus pandemic the Care Inspectorate offices have been closed (and remain so at the time of reporting).

7.2.8.6 For this reason, staff have not been able to access printers to enable hard copy correspondence to be issued. Nevertheless, the accessing of postal services would still have been difficult as would the giving of notice by hand delivery, which would have necessitated face-to-face contact. In the absence of this legislative change, the Care Inspectorate would have delivered formal notices by email and would have argued strongly that it did constitute effective delivery. The amendments that have been introduced put the position beyond doubt.

Factors Considered to Determine Use and Continued Necessity

7.2.8.7 The changes to the identities of individuals to whom a notice intended for a body corporate may be given, has been an essential change from the point of view of updating section 101 of the Public Service Reform (Scotland) Act 2010. This has made it fit for purpose in today's environment, regardless of coronavirus.

7.2.8.8 The Scottish Government's view is that this provision will continue to be necessary for as long as there is not as near-normal office access and similarly, as near-normal access to postal services. This will continue to be kept under review.

7.2.8.9 The Care Inspectorate, as the independent scrutiny and improvement body responsible for the regulation and inspection of care and support services in Scotland, is subject to the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. See additional information regarding this at section 7.2.5.17 and 7.2.5.18 above.

7.2.8.10 Article 8 of ECHR provides for the right to respect for private and family life. This right is also engaged in relation to private correspondence. Electronic issuing of notices under the new provision hinges on a person's willingness to receive the communication in that manner, and so is clearly compatible with the ECHR. If a person demonstrates an unwillingness to receive communications from the Care Inspectorate in this manner, then other delivery options may be pursued.

7.2.8.11 The impact of the operation of this provision will continue to be reviewed.

7.3 UK Act

7.3.1. Section 10 and schedule 9 - Temporary modification of mental health legislation

Description of Provision

7.3.1.1 The provision makes temporary changes to mental health legislation and it aims to ensure that people can continue to be treated and cared for in a way which both respects their rights, and maintains safeguards. These temporary changes will continue to be compliant with human rights obligations.

Factors Considered to Determine Use and Continued Necessity

7.3.1.2 The provisions have not yet commenced.

7.3.1.3 Mental health legislation in Scotland provides for rigorous safeguards in respect of individuals' human rights which include that any function should be carried out for the maximum benefit of the patient, with the minimum necessary restriction on the freedom of the patient. During the passage of the Bill, Ministers were clear that these temporary changes would be brought in only when absolutely necessary.

7.3.1.4 The temporary provisions aim to provide additional flexibility to enable services to cope with significant staff shortages whilst maintaining appropriate safeguards for patients and to help support the continued safe running of compulsory care and treatment services under mental health legislation.

7.3.1.5 In order for Scottish Ministers to take a view on appropriate and timely commencement of the mental health provisions, the Scottish Government has been clear that there is an ongoing need to collate and review a range of evidence including NHS workforce information showing the overall and coronavirus-related staff absence rate across NHS Boards. In addition, the Scottish Government is working closely with the Mental Welfare Commission, the Mental Health Tribunal for Scotland, the Royal College of Psychiatrists and Social Work Scotland. The Mental Welfare Commission has a statutory duty to monitor the use of the Scottish Government's mental health legislation and it will ensure that the necessary data continues to be collected. Also, through its oversight group, the Mental Welfare Commission will be in a position to scrutinise and monitor the use of these emergency powers, if ever commenced.

7.3.1.6 At the most recent meeting of stakeholders, all participants reported an increasing level of demand on mental health services over recent weeks, both in terms of support services for those with poor mental wellbeing, but also on psychiatric services from people with more severe mental ill health. While services are currently coping with increasing levels of activity under mental health legislation, there was a feeling that services would be in a more vulnerable position given the potential for resurgence of the virus as it would mean the potential for staff reductions alongside increased demands on already stretched mental health services. Stakeholders also recognised that the mental health impacts of this epidemic and associated lockdown restrictions may not be fully felt or understood for some months to come. All agreed that the data and evidence of impact on services and workforce is paramount when considering whether there is a the need to commence the legislation. Therefore, it is necessary to retain these provisions overall to provide additional flexibility in the event of resurgence of the virus.

7.3.1.7 Mental health legislation in Scotland already provides for rigorous safeguards in respect of individuals' human rights. Consideration has been given to the potential for impacting on an individual's human rights in the event that the amendments to mental health legislation ever require to be commenced. There is a balancing exercise involved in assessing the proportionality of a measure when multiple human rights are engaged; this remains the case even during a pandemic when Article 2 (the right to life) is engaged. We acknowledge that there is a risk that the relaxing of measures required for admission, and the increase in the length of time patients can be detained could be argued to have a detrimental impact on this protected group.

7.3.1.8 However, these temporary changes to mental health legislation are intended to ensure that people can continue to be treated and cared for in a way which both respects their rights and maintains safeguards while ensuring that services can better cope with staff shortages. Careful consideration was given as to how this could be achieved and the temporary measures are not about making it easier to detain people, but to ensure those who are in need of detention under the Mental Health Act receive the care they need when they need it.

7.3.1.9 Section 3 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the '2003 Act') provides that certain persons exercising functions under the Act are required to discharge the function in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements. This section will remain in force even if the amendments are commenced.

7.3.1.10 The amending provisions, if commenced, would be time limited and restricted to use only when necessary. They are not replacing existing legislation and as they are permissive rather than prescriptive then they would provide flexibility about staffing and time limits. If commenced they would only be used when adhering to the current mental health legislation is not practicable or would involve undesirable delay. Should it become necessary to commence and rely on the amended provisions, there is still a prescribed procedure that must be followed when an individual is being assessed, treated and/or detained.

Evidence from stakeholders suggests that it is important to retain the temporary provisions at present

7.3.1.11 The Chair of the Royal College of Psychiatrists wrote to the Convenor of the Equalities and Human Rights Committee on 8 June 2020, making clear they believe that there remains a real possibility that that these workforce pressures may come to bear later in the year and therefore support the retention of the temporary provisions.

7.3.1.12 On 10 July 2020, the Royal College of Psychiatrists wrote to Scottish Ministers stressing their commitment to ensuring the rights of people with mental ill health are protected and that they are able to access the best care and treatment. It should also be noted that these temporary provisions, if commenced, are to be permissive rather than obligatory. They are clear that evidence is already emerging of countries being impacted by resurgence of the virus and the potential for this remains a possibility.

7.3.1.13 Members of the Short Life Mental Health Legislation Commencement Consideration Group gave evidence to the Equality and Human Rights Committee on 27 August 2020 and were clear that the current landscape continues to demonstrate that workload pressures are not at the stage where these temporary provisions should commence. However, the group remains strongly of the opinion that it is necessary to have these provisions available as they provide a safety net during uncertain times.

7.3.1.14 The Scottish Government will continue to engage with stakeholders in order to gather, analyse and review all available data and evidence. This will be used to inform and shape future advice to Scottish Ministers regarding any decision to commence these temporary measures.

7.3.2. Section 16 - Duty of Local Authority to assess needs: Scotland, and section 17 - section 16: further provision

Description of Provision

7.3.2.1 The provisions allow for relaxation of some requirements relating to social work needs assessments.

Operation of Provision in Reporting Period

7.3.2.2 Sections 16 and 17 of the UK Act allow Local Authorities to dispense with particular social care assessment duties where it would not be practical to comply with them, or to do so would cause unnecessary delay in providing community care services to any person. The provision covers social care for adults and children and support for carers. It is intended to allow Local Authorities to provide urgent care without delay.

7.3.2.3 The provisions allow Local Authorities the flexibility to focus on prioritising the most urgent need and protecting the lives of those who are most vulnerable while ensuring effective safeguards. Local Authorities are still expected to do as much as they can to meet people's needs. While the provisions relax assessment duties, the main duties on authorities under section 12 of the Social Work (Scotland) Act 1968 remain in place.

7.3.2.4 Scottish Minsters made the Coronavirus Act 2020 (Commencement No. 1) (Scotland) Regulations 2020 (SSI 2020/121)[69], which came into force on 5 April 2020. Statutory guidance[70] on these powers was issued on 3 April 2020, and the Deputy First Minister and Cabinet Secretary for Health and Sport wrote jointly to key stakeholders ahead of commencement which was on 5 April 2020. These communications made clear that these powers in respect of assessment duties would remain in operation only while absolutely necessary to protect people.

7.3.2.5 Under section 17(2)(B) of the UK Act, Scottish Ministers can direct Local Authorities to comply with any guidance which is issued under section 17(1). It is intended that this power will only be used if it is considered that the guidance requires the weight of direction, and it will not be necessary to make the direction if Local Authorities demonstrate that they are exercising their functions accordingly. As such, this direction making power has not been used in the reporting period.

7.3.2.6 Following liaison with COSLA and Social Work Scotland, the Scottish Government issued a survey to Chief Social Work Officers to identify use of the powers and the justification for this over the period from commencement of the above regulations on 5 April 2020 until 16 May 2020. Information from this survey was included in the first two-monthly report to the Scottish Parliament on use of powers under the Coronavirus Acts. A further survey was conducted covering the period 17 May to 3 July 2020 to inform the second report to Parliament. A third survey was undertaken covering use of the powers over the period 4 July to 6 September 2020. Responses to the third survey were received from all 31 Health and Social Care Partnership areas. Of these, four reported they were using the powers. The Local Authorities which said they were using the powers during the third monitoring period were: Dundee, East Renfrewshire, Highland and South Lanarkshire. These are the same Local Authorities that used the powers during the second monitoring period.

7.3.2.7 Reasons given for use of the powers included: to allow staff to support front line duties, to provide flexibility to enable targeting of resources on those with most needs, and to ensure people receive appropriate care promptly.

7.3.2.8 Local Authorities/Health and Social Care Partnerships that used the powers highlighted their importance in enabling them to effectively manage their response to coronavirus against the backdrop of significant pressures and thus enabling the provision of urgent care and support to those most in need.

7.3.2.9 Local Authorities using the powers were asked to explain what arrangements were in place to ensure that these powers are being used in a way that protects human rights, including the rights of children. Responses included the continued focus on Health and Social Care Standards and Social Work protocols that emphasize human rights principles; the use of risk assessment to determine when full assessments are required; and changes to practice to ensure consistency and avoid delays or an absence of creativity in responding to needs.

Factors Considered to Determine Use and Continued Necessity

7.3.2.10 The statutory guidance referred to above, provides a reference point and framework for Local Authorities, if they choose to implement the provisions. The statutory guidance which is referred to above states: "all assessments other than full should be regarded as temporary. These should be reviewed as well as possible at regular intervals".

7.3.2.11 The guidance sets out that Local Authorities are responsible for ensuring that the powers are only used for as long as is necessary. When using these provisions, all decisions made on an individual's social care needs should be considered alongside their individual wellbeing and fundamental human rights.

7.3.2.12 As was the case for the first and second reporting periods, most Local Authorities have determined that it is not operationally necessary for them to use these powers at this stage. This demonstrates that Local Authorities are carefully considering use of the powers, reviewing them, and seeking to use them only where appropriate, proportionate and necessary, and subject to their governance processes.

7.3.2.13 Significant progress has been made in tackling the virus and the Scottish Government wants to move as soon as possible to a position where all those in need of social care receive full assessments.

7.3.2.14 In relation to children's services, child protection activity has been monitored on a weekly basis since early in lockdown. There were peaks in child protection registrations as lockdown eased, but the number has declined fairly steadily since with corresponding de-registrations increasing. These spikes were widely expected by senior professionals as contact with vulnerable children increased after lockdown. Police Scotland child concern reports also appear to have returned to levels similar to last year.

7.3.2.15 Social Work Scotland and the Office of the Chief Social Work Adviser believe however, that there is a potential for demand in children's services to increase over the winter and that any delays in response times could leave children unprotected or families without prompt support.

7.3.2.16 The status of these provisions at the end of this reporting period, of 'commenced and still in force' is appropriate at this current time. The continued use of these provisions beyond this reporting period, specifically those relating to adult services, is being considered carefully with a view to suspension. Regulations would be required to suspend these provisions and if appropriate could be brought forward before the next two-monthly report.

7.3.3. Sections 34 and 35 - Temporary disapplication of disclosure offences: Scotland and power to reclassify certain disclosure requests: Scotland

Description of Provision

7.3.3.1 The provisions give Scottish Ministers the power to issue a direction that dis-applies or modifies the offences under section 35 (organisations not to use barred individuals for regulated work) and section 36 (personnel suppliers not to supply barred individuals for regulated work) of the Protection of Vulnerable Groups (Scotland) Act 2007 ('the PVG Act').

Factors Considered to Determine Use and Continued Necessity

7.3.3.2 This power has not been used in this reporting period. The use of these provisions is directly linked to the ability of Disclosure Scotland to continue to provide a service to those critical workers requiring PVG scheme membership. This provision is to ensure that employers that employ someone who is barred from regulated work are not criminalised due to the inability of Disclosure Scotland to provide this check in a timely manner.

7.3.3.3 Disclosure Scotland's Leadership Team monitors the number of applications received on a daily basis, and the length of time that it is taking to process and issue disclosures. Throughout the reporting period, the vast majority of disclosures have been issued within one week of the application being received. Disclosure Scotland's Leadership Team also monitors staff absences daily, and these have not been at a level to impact adversely on the processing and issuing of disclosures. Scottish Ministers will make the decision to invoke this contingency if monitoring shows that there is a material risk of Disclosure Scotland being unable to continue to provide a service to critical workers requiring PVG scheme membership.

7.3.3.4 While at this time, the assessment is that the powers under sections 34 and 35 do not require to be used, the provision remains necessary overall as a contingency to ensure continuity of service.

7.3.3.5 The provisions are not considered to engage any children's rights, human rights or equality considerations. While the disclosure and barring services operated under the PVG Act can impact on both Article 6 and Article 8 rights, sections 34 and 35 do not change the type or extent of information that may be disclosed about a person's criminal past, nor do they affect Ministers' ability to place an individual under consideration for listing to prevent them from working with vulnerable groups. They do not undermine safeguarding, since it would continue to be an offence for a barred individual to do regulated work with children and/or protected adults.

7.3.4. Section 37 and Part 2 of schedule 16 and section 38 and Part 2 of schedule 17 - Temporary closure of educational institutions and childcare premises, and temporary continuity: education, training and childcare

Description of Provision

7.3.4.1 The provisions provide Scottish Ministers with powers to direct the closure of educational establishments where it is necessary and proportionate, or give directions relating to the continuity of education, which may include directing the operator of an education establishment to take on additional functions, to close educational establishments, or reopen either partially or fully. Both types of direction include powers to provide that any failure to comply with a statutory duty or time limit is to be disregarded to the extent the failure is attributable to the direction; a closure direction had such effects automatically.

Operation of Provision in Reporting Period

7.3.4.2 The powers under section 37 and Part 2 of schedule 16 have not been used in the reporting period.

7.3.4.3 The powers under section 38 and Part 2 of schedule 17 have been used in this reporting period up to 30 August 2020. Scottish Ministers exercised their powers conferred by section 38(2) and paragraph 11(1) of schedule 17 of the UK Act, to give Educational Continuity Directions[71] to education authorities. The first such direction was given with effect from 21 May 2020 and was reviewed and renewed on a 21 day cycle. The most recent direction was given with effect from 10 August 2020 and expired on 30 August 2020. As required by the legislation, Scottish Ministers had regard to advice relating to coronavirus from the Chief Medical Officer ahead of the Educational Continuity Direction being issued, and they have been satisfied that giving each direction was necessary and proportionate in response to the pandemic.

7.3.4.4 The 'Coronavirus Act 2020: educational continuity direction'[72] continued to support and provide a legal basis for key measures of the 'Strategic Framework for Reopening of Schools and Early Learning and Childcare Provision'[73] and the more recent guidance on preparing for the start of the new school term in August 2020[74]. For example, it included requirements on education authorities to reopen schools under their management for the provision of education to pupils from 11 August 2020 and ensure that all schools under their management were open to pupils for the provision of education no later than 18 August 2020. It also required each education authority to prepare contingency plans which can be used immediately in the event of a local coronavirus outbreak. Over the course of the reporting period the Educational Continuity Direction power has not been exercised in relation to early learning and childcare settings or Further Education or Higher Education institutions.

Factors Considered to Determine Use and Continued Necessity

7.3.4.5 The most recent continuity direction expired on 30 August 2020. It was not considered necessary or proportionate to give a further direction. However, due to the continuing uncertainties of the development of this pandemic, the provisions for educational closure directions and educational continuity directions remain necessary to allow Scottish Ministers to respond swiftly to the current public health emergency as it evolves, for example any future resurgence of the virus which may necessitate closures of educational establishments. The situation will be kept under review in line with the key discussions had by the Education Recovery Group, however, at this stage it is not anticipated that further directions will be given.

7.3.4.6 The Education Recovery Group provided the broad based overview of the effect of the direction. An initial impact assessment of the Strategic Framework was published on 21 May 2020[75], and full impact assessments in relation to protected characteristics, children's rights and wellbeing, the Fairer Scotland Duty and island communities were subsequently completed in collaboration with human rights organisations and key stakeholders. The Impact Assessment for 'The closure and reopening of schools as part of the COVID-19 recovery process in Scotland' was published on 30 July 2020[76] alongside the updated guidance for reopening schools which reflected the Government's updated position on being able to open schools full-time from August. It has since been updated to reflect the Scottish Government's updated position on face coverings in schools.

7.3.5. Section 49 and schedule 19 - Health Protection Regulations: Scotland

Description of Provision

7.3.5.1 Section 49 introduces schedule 19, which gives Scottish Ministers the powers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland.

Operation of Provision in Reporting Period

7.3.5.2 Section 49 commenced on Royal Assent and schedule 19 came into force on 25 March 2020. The powers have been used to make several sets of regulations to provide for the "lockdown". The chronology of this is as follows:

  • 25 March 2020: The UK Act receives Royal Assent and section 49 and schedule 19 of the Act (the enabling powers for the regulations) come into force. Coronavirus (COVID-19): Business and Social Distancing Guidance[77] is also published.
  • 26 March 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (SSI 2020/103)[78] are made and come into force.
  • 27 March 2020: Physical Distancing Guidance Staying at Home and Away from Others[79] is published.
  • 1 April 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment Regulations 2020 (SSI 2020/106)[80] are made and come into force. These regulations make minor amendments to regulations 4 and 7 of the original regulations to amend cross referencing errors.
  • 16 April 2020: The regulations are reviewed. The Cabinet Secretary for Constitution, Europe and External Affairs wrote to inform the Scottish Parliament of this.
  • 21 April 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 2) Regulations 2020 (SSI 2020/126)[81] are made and come into force. These regulations strengthen the position already set out in guidance by making it a legal requirement that all businesses that are open during the emergency period must take reasonable steps to ensure that their employees are able to maintain social distancing. They also make minor extensions and clarifications to the regulations in relation to livestock markets, holiday accommodation services and burial grounds.
  • 7 May 2020: The regulations are reviewed.
  • 11 May 2020: The Physical Distancing Guidance which is referred to above is updated to reflect that people are advised they can exercise as often as they wish. Scottish Ministers made this change following scientific advice and using the COVID-19 Decision-Making Framework[82]. This change will be monitored carefully and reviewed in order to assess the effects on physical distancing and infection spread.
  • 28 May 2020: The principal regulations are reviewed and the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 3) Regulations 2020 (SSI 2020/164)[83] are made. These regulations provide that people may take part in outdoor recreation with members of their household and with members of one other household. They allow garden centres to reopen and provide that it is a reasonable excuse to leave your home to obtain supplies from garden centres (or any other business or service listed in Part 3 of schedule 1) or to access waste/recycling services. The regulations provide for the reopening of outdoor tennis courts and bowling greens. They allow businesses and service providers, currently closed to the public under the regulations, to begin preparing social distancing procedures in readiness for when they are allowed to reopen. They make a number of technical amendments with the effect that the termination of a restriction or requirement imposed by the principal regulations must be by way of an amending instrument, rather than by direction. The regulations came into force on 29 May 2020.
  • 18 June 2020: The regulations are reviewed. The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 4) Regulations 2020 (SSI 2020/182)[84] are made. The regulations allow people to meet outside with their own household and with people from up to two other households. They enable people to attend places of worship for individual prayer and contemplation. They allow accommodation providers to accommodate people travelling for work. They introduce a new requirement to wear a face covering when using a passenger transport service or passenger transport service premises. They enable a person who lives alone, or who is a single parent with children under the age of 18 to form an "extended household" with one other household. The Scottish Government's guidance is updated to reflect these changes and to make other changes for the purpose of implementing proposals in the Route Map.
  • 26 June 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 5) Regulations 2020 (SSI 2020/190)[85] are made. They provide that, in relation to a civil partnership or marriage, an approved celebrant, authorised registrar and any interpreter will not be counted as one of the three households that may take part in the gathering. They enable people to undertake certain activities in relation to the purchase, sale, letting or rental of a residential property and to attend a property for maintenance. The regulations allow certain businesses, that were required to be closed, to reopen. The regulations also enable college and university libraries to reopen to staff and students in certain circumstances. Scottish Government guidance is also updated.
  • 2 July 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 6) Regulations 2020 (SSI 2020/199)[86] are made. They provide that businesses can sell food and drink to people for consumption on outdoor parts of their premises (with physical distancing). The regulations also provide that accommodation providers may now provide self-catering accommodation in certain circumstances. People who own properties other than where they are living now have a reasonable excuse to visit the property.
  • 9 July 2020: Following the review required by 9 July 2020, Scottish Ministers decided to progress to phase three of the Route Map. The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 7) Regulations 2020 (SSI 2020/210)[87] are made. They reduce the physical distancing limit to one metre for businesses or services that meet the definition of a passenger transport service premises or a shop. They revoke the offence of leaving one's home without a reasonable excuse. These regulations also provide that an outdoor gathering may now consist of five households and an indoor gathering may consist of three households and allows gatherings for the purpose of supervised outdoor recreation for people who are under 18 years of age. They allow two households to form an extended household. The regulations create a new offence, requiring people to wear a face covering when inside a shop and provide exceptions and reasonable excuses for failing to meet this duty. Scottish Government guidance is updated.
  • 14 July 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No. 8) Regulations 2020 (SSI 2020/211)[88] are made. They provide that businesses may serve food and drink for consumption indoors. The regulations also provide that libraries and holiday accommodation providers that could only open in certain circumstances, may now fully reopen. They also provide that places of worship may now be reopen and ease restrictions on gatherings to attend a place of worship. The regulations provide that a number of other businesses and services that were previously required to be closed, such as museums, galleries, cinemas and hair salons and barbers can reopen on 15 July, while beauty parlours, tattoo and piercing parlours and spas, may reopen on 22 July. The regulations also ease the restrictions on gatherings at funerals, marriage ceremonies and civil partnership registrations or where the gathering is for the purpose of childcare. Scottish Government guidance is updated.
  • 30 July 2020: The regulations are reviewed. The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendments (No.9) Regulations 2020 (SSI 2020/232)[89] are made. They provide that schools are exempt from two meter physical distancing, that cinemas must follow two meter distancing, and that community centres can reopen.
  • 7 August 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendments (No.10) Regulations 2020 (SSI 2020/236)[90] are made. They introduced changes to face coverings, to extend the settings in which they are required, to exclude face shields from the definition of a face covering, and to require those responsible for certain premises to take measures to minimise risk of exposure to coronavirus.
  • 13 August 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendments (No.11) Regulations 2020 (SSI 2020/241)[91] are made. They amend the principal regulations with the effect that a person responsible for hospitality premises is required to collect information about visitors to those premises.
  • 21 August 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendments (No.12) Regulations 2020 (SSI 2020/251)[92] are made. They set out that gathering for the purposes of an organised outdoor activity is exempt from the public gathering restrictions. The regulations allow preparatory work, including rehearsals, to recommence in theatres and concert halls ahead of their full reopening later in the Route Map and revoke the requirement for bingo halls, amusement arcades, casinos, bowling alleys, pool/snooker halls and funfairs to close. The regulations also require face coverings to be worn in bingo halls, amusement arcades, casinos, bowling alleys and indoor funfairs.
  • 27 August 2020: The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendments (No.13) Regulations 2020 (SSI 2020/261)[93] are made. They provide the police with powers to take action in cases of house parties of 16 or more people from more than one household. They also amend the list of exceptions to the restriction on gatherings in public place to allow a gathering to take place where it is for the purpose of organised exercise and certain other organised activities. The regulations permit indoor fitness studios, gyms, swimming pools or other indoor leisure centres, including skating rinks to reopen. They also require the wearing of face coverings in the sport and exercise related venues which are now reopening and sets out that a face covering does not need to be worn for the purpose of exercise.
  • 28 August 2020: The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 (SSI 2020/262)[94] come into force. These new regulations make provision for a Local Authority to give directions relating to specified premises, events and public outdoor places in its area. A direction may only be given if the Local Authority considers that the necessity and proportionality conditions set out in the regulations are met. The Local Authority must review the direction at least once every seven days and it must be revoked, or revoked and replaced when it is determined on review that the requirements of necessity and proportionality are no longer met.
  • 11 September 2020: The regulations are reviewed. As the measures are still deemed necessary, the regulations are revoked and replaced with a new instrument due to the impending expiry date of 26 September 2020. The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 (SSI 2020/279)[95] are made. They provide that the regulations remain in place until 31 March 2021. They also adjust the restriction on parties in private dwellings to ensure student accommodation is appropriately covered by the existing restrictions, introduce new restrictions on public and private gatherings, setting out that gatherings made up of more than six people from more than two households are restricted, with the exception of some limited circumstances. The regulations adjust the previous provisions relating to the face coverings to ensure that customers and staff are required to wear face coverings, in certain circumstances, when within a hospitality venue and ensure marriage and civil partnership receptions and funeral wakes are no longer restricted by the gathering limit (now six people from two households) so can take place with slightly larger numbers.
  • 24 September 2020: The regulations are reviewed. The current measures are still deemed necessary and some further restrictions are required. The Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Amendment Regulations 2020 are made. They require certain hospitality premises to close between 10pm and 5am and to only sell food or drink for consumption on those premises if customers consume the food and drink while sitting at a table. They also adjust the restrictions on gatherings.

7.3.5.3 The Physical Distancing Guidance has been updated at various points to accompany the measures set out in the updated regulations, and to give further details on additional recommended measures. A refreshed guidance note, focussing on the key measures and changes in each phase of the Route Map, has been published at the start of phase two and phase three. The Scottish Government has published supporting evidence that has informed the decisions for moving through the Route Map. The most recent supporting evidence for the move to phase three was published on 14 July 2020[96].

7.3.5.4 Police Scotland is publishing weekly updates on the use of coronavirus legislation, including the number of Fixed Penalty Notices issued and other intervention activity[97]. This information is drawn from Police Scotland's 'Coronavirus Interventions' application, which relies on manual input from police officers. Due to this manual input, these figures are indicative only and should not be considered Official Police Statistics. This system currently provides the broadest picture of the differing levels of co-operation experienced by police across Scotland.

7.3.5.5 In due course and as standard practice, the Official Statistics produced by the Scottish Government on Recorded Crime[98] and Criminal Proceedings[99] will ultimately provide users with information on both the number of crimes recorded in relation to the new powers, and the number of Fixed Penalty Notices issued. Further updates on developments with these Official Statistics can be received by signing up to the SCOTSTAT network[100].

7.3.5.6 Information is now available on charges reported to COPFS under the Health Protection (Coronavirus)(Restrictions)(Scotland) Regulations 2020. Most charges were related to regulation 8(1), for failure to comply with Coronavirus Regulations.

7.3.5.7 Table Three below provides additional information on the number of charges reported up to 31 August 2020 and the initial decision on how these charges will proceed.

Table Three: Action taken as a result of charges reported to COPFS under the Health Protection (Coronavirus)(Restrictions)(Scotland) Regulations 2020 – up to 31 August 2020
Action taken Number of charges reported % of total
Solemn 59 10%
Summary 214 36%
Fiscal Fine 91
Reporter 25
Warning/Diversion 15
Direct Measure Total 131 22%
No Action/Not Separately Actioned Total 86 15%
No Decision Total 101 17%
Overall Total 591[101] 100%

Source: COPFS

7.3.5.8 The table above covers the full period of the regulations being in force. A monthly breakdown of charges reported by date of offence is provided below.

Table Four: Charges reported to COPFS under the Health Protection (Coronavirus)(Restrictions)(Scotland) Regulations 2020 by date of offence – up to 31 August 2020
Month March April May June July August Total
Total charges reported 32 319 185 35 13 7 591

Source: COPFS

7.3.5.9 This demonstrates that there has been a decline in charges under the regulations, with only 7 of the 591 charges reported since the regulations were introduced relating to offences committed in August (however, the figure for August may increase slightly as some offences committed in August may be reported to COPFS in September or later).

7.3.5.10 A Local Authority can also use enforcement powers in relation to the parts of the regulations (regulations 4, 5 and 6 of the principal regulations) that relate to restrictions on businesses.

7.3.5.11 To ensure a co-ordinated approach to coronavirus was taken nationally, the Environmental Health/Trading Standards COVID-19 Expert Group was formed by the Society of Chief Officers of Environmental Health of Scotland and the Society of Chief Officers of Trading Standards in Scotland in conjunction with COSLA. Both Environmental Health and Trading Standards staff have been designated as authorised officers by Local Authorities to enforce the relevant requirements of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (SSI 2020/103), as amended.

7.3.5.12 Each Local Authority is publishing information about enforcement activity undertaken in relation to the regulations on the respective Local Authority's website. This information is currently published every two weeks.

Factors Considered to Determine Use and Continued Necessity

7.3.5.13 Prior to the regulations being made, confirmation was sought from the Chief Medical Officer that the measures set out in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 were required due to the serious and imminent threat to public health posed by the incidence and spread of the coronavirus.

7.3.5.14 Scottish Ministers also had to ensure that the restrictions and requirements that they imposed were proportionate to what is sought to be achieved by the imposition of the regulations. Advice that the regulations should continue to remain in force was sought, and provided, ahead of each review of the regulations. This was provided by a range of analytical and health teams across the Scottish Government. Advice on the impact on public health of any changes to the regulations to relax the measures was sought before each change was implemented in the regulations.

7.3.5.15 The necessity of the restrictions and requirements imposed by the regulations must be reviewed at least every 21 days, and measures must be terminated as soon as they are no longer required.

7.3.5.16 In practice, this means that at least every 21 days, the full range of measures are formally reviewed based on whether they are needed on public health grounds, and the results of the review are communicated to the Scottish Parliament. In between these formal reviews, the individual measures are kept under continuous review and changes are assessed based on public health grounds and the threat to public health that is posed by coronavirus and whether the restrictions and prohibitions imposed by the regulations remain proportionate to what the regulations seek to achieve. Where measures can be eased, they are being eased as soon as the evidence suggests this. These changes are being announced by the Scottish Government, and announced to the Scottish Parliament, as and when they are made.

7.3.5.17 Throughout the development of the regulations and guidance, the Scottish Government has always had regard to equality considerations and the particular needs of island communities as part of the policy development process. Ministers were clear that the regulations and the restrictions and requirements that they impose were necessary.

7.3.5.18 Whilst these measures were brought in to deal with a significant threat to public health, impact assessments will be carried out as required on these measures. Any proposed changes to the measures are being assessed for their impact on equality and other areas as part of the policy development. This will be reported to the Scottish Parliament in appropriate impact assessments supporting any further amending regulations. An Equality Impact Assessment has been carried out for each of the Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment Regulations No.2 to most recently No.13. The new Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 have also been assessed and an Equality Impact Assessment has been carried out. All impact assessments can be found on www.legislation.gov.uk under the appropriate instrument. In addition, an Equality Impact Assessment[102] has been published as part of the evidence gathered for the Route Map.

7.3.6. Section 51 and Part 3 of schedule 21 - Powers relating to potentially infectious persons

Description of Provision

7.3.6.1 Section 51 introduces schedule 21 which sets out powers which can be exercised by public health officers, constables and immigration officers in respect of persons where there are reasonable grounds to suspect that they are "potentially infectious".

Operation of Provision in Reporting Period

7.3.6.2 A declaration of a serious and imminent threat to public health[103] was made on 25 March 2020 under schedule 21, and a further clarificatory declaration[104] was made on 30 March 2020. Although the schedule 21 powers have been "switched on" via this declaration made by Scottish Ministers, they have not been used in the reporting period. The views and agreement of the Chief Medical Officer were formally sought and secured prior to the issuing of the declaration to switch on the schedule 21 powers.

Factors Considered to Determine Use and Continued Necessity

7.3.6.3 The schedule 21 potentially infectious persons powers continue to be required. The easing of lockdown provisions introduce a risk of potential, localised outbreaks of coronavirus. The Test and Protect programme aims to identify those at risk of exposure in order to test for coronavirus and require self-isolation. Where individuals do not co-operate on a voluntary basis it may be necessary to use the powers under schedule 21 for their own and others' health and wellbeing.

7.3.6.4 In respect of the provisions in schedule 21, for example relating to isolation and medical screening and assessment, the requirements of ECHR were carefully considered when the Act was developed. When powers under schedule 21 are exercised, they must be exercised in a manner which strikes an appropriate balance between individuals' rights and the public health interest. To ensure this, a number of safeguards are built into the provisions, including the pre-requisite for the use of powers being a Ministerial declaration of a "serious and imminent risk to public health"; the requirement for the person exercising powers under the schedule to have reasonable grounds to believe that the person they are dealing with is potentially infectious; and appeal rights for those subject to restrictions.

7.3.7. Section 52 and Part 3 of schedule 22 - Powers to issue directions in relation to events, gatherings and premises

Description of Provision

7.3.7.1 Section 52 introduces schedule 22 which gives the Scottish Ministers direction-making powers in relation to events, gatherings and premises.

Operation of Provision in Reporting Period

7.3.7.2 A declaration of serious and imminent threat to public health[105] was made on 25 March 2020 under schedule 22. This had the effect of starting a "public health response period" and switching on the schedule 22 powers (with a further clarificatory declaration[106] made on 30 March 2020).

7.3.7.3 The views and agreement of the Chief Medical Officer were formally sought and secured prior to the issuing of the declaration to switch on the schedule 22 powers.

7.3.7.4 Although the schedule 22 powers have been "switched on" via the declaration made by Scottish Ministers, they have not yet been used to make directions relating to events, gatherings and premises. Provision in that regard has instead been made to date by regulations made under schedule 19. Provision has also been made through regulations[107] made under the section 49, schedule 19 powers, to allow Local Authorities to give directions relating to specified premises, events and public outdoor places in their area.

Factors Considered to Determine Use and Continued Necessity

7.3.7.5 As the requirement for the schedule 19 regulations is kept under review, based on public health grounds, so too is the ongoing requirement for the schedule 22 powers and when they might be invoked. Whilst no directions have been made under schedule 22 yet, the powers remain necessary and could be used to take fast targeted action beyond the scope of the regulations if it appeared necessary, proportionate and justified in the circumstances. As part of exiting lockdown, the powers may be necessary to allow Scottish Ministers to take more targeted action in local areas to close specific premises where there is a serious outbreak (where premises of that type are not closed by the schedule 19 regulations), or where Ministers consider action needs to be taken quickly and premises have not yet been closed by a Local Authority or where Local Authority powers are not appropriate - for example, where there is an outbreak spanning a number of Local Authorities but not all of Scotland.

7.3.7.6 When powers are exercised under schedule 22, they must be exercised in a manner which strikes an appropriate balance between individuals' rights and the public health interest. Safeguards are built into the provisions, for example, the pre-requisite for the use of powers being a Ministerial declaration of a "serious and imminent risk to public health". Decisions on issuing directions under schedule 22 will be taken in the interests of the protection of public health, will be made on the basis of medical and scientific advice, and will be proportionate to the management of risks to public health of coronavirus.


Contact

Email: Covid.Leg@gov.scot