The coronavirus (COVID-19) outbreak is a severe and sustained threat to human life in Scotland. The human cost is, sadly, only too apparent. The impact of the pandemic on public services, business and private lives in Scotland has been profound. The magnitude of the challenge has required extraordinary measures. The handing of the COVID-19 crisis raises challenges of complexity and uncertainty. All of us have required to make substantial adjustments to cope with these unprecedented times.
It has fallen to the Scottish Government and to the Scottish Parliament to ensure that we have the necessary legislative powers, first and foremost to protect the lives and health of people living in Scotland, but also to offer what support we can to every part of the economy, the public sector, and the third sector.
The Government has legislated for a range of powers to match these exceptional challenges. In seeking the Parliament's approval for the necessary powers, the Government has been clear from the outset about two key points. First, that the powers taken should be proportionate to the challenge and last only as long as required in recognition of the significant issues raised by these powers in terms of human rights impacts. Second, that the Scottish Parliament must have continued oversight of the continued necessity of those powers and hold Scottish Ministers to account for their use.
This report forms a key plank in the Scottish Government's accountability to Parliament for the retention and use of these powers. As we have throughout the pandemic, Scottish Ministers will continue to be answerable to Parliament for how the Scottish Government is responding to the pandemic, including the use of statutory powers.
This report covers the powers contained in the following Acts:
- The Coronavirus Act 2020 (the 'UK Act') – covering the provisions for which the Scottish Parliament gave legislative consent.
- The Coronavirus (Scotland) Act 2020 (the 'Scottish Act').
In addition to the powers contained in the above Acts, the second report to Parliament which will be due after the second reporting period ends on 31 July 2020 will also cover:
- The Coronavirus (Scotland) (No. 2) Act 2020 (the 'second Scottish Act').
- Reporting on all Scottish Statutory Instruments (SSIs) made by Scottish Ministers where the primary purpose relates to coronavirus.
The UK Act and the Scottish Act provide new powers and measures to help protect the public, maintain essential public services and support the economy. These measures are necessary because of the unprecedented public health and economic challenges posed by the pandemic.
The Four-nations Coronavirus Action Plan which was published on 3 March 2020 outlined our collective approach and closely-integrated planning process in place, including changes to legislation where needed, to help prevent the spread of the outbreak and combat the impact and consequences of coronavirus.
The provisions in the UK Act, which were the result of intensive work between the UK Government and the Devolved Administrations, cover a range of topics and sectors, including bespoke provisions for Scotland to reflect our different legal systems in devolved areas. The Scottish Act contains a range of further powers which focus on three headline areas - adjustments to the justice system to ensure essential justice business continues, provisions designed to ensure businesses, consumers and public services continue to operate effectively, and adjustments to the law on evictions to protect those renting their homes in the private and social sector.
Our approach to reporting
We have always made clear that it would be essential that this legislation be supported by safeguards including regular reporting and review, and these were built into the Scottish Act. Section 15 of the Scottish Act requires Scottish Ministers to review the operation of the provisions of Part 1 of the Act in each reporting period, and every two months, report on the status of the provisions and make a statement that they are satisfied that the status of those provisions is appropriate. This first report covers the reporting period up to 31 May 2020.
Whilst the UK Act does not contain equivalent reporting requirements for the Devolved Administrations to those which require the UK Government to report on its non-devolved provisions every two months, I gave a commitment when the Scottish Parliament considered the Legislative Consent Memorandum for the UK Act that the Scottish Government would put in place its own reporting arrangements. These would be consistent with the reporting requirements established within our own Scottish Act.
Our approach has required careful consideration to ensure that we can balance openness and transparency with the need to avoid placing undue pressures to provide information on those at the heart of the coronavirus response. In bringing forward our legislative proposals we have taken every effort to place human rights at the heart of our approach. We fully recognise that some measures in the legislation will have greater impact than others on individuals or groups, and varying implications for equality and rights.
The approach we have developed for our first report places at its centre those provisions which we have judged, at present, to be of the most significant impact or interest because of their impact on human rights or because they are areas that Parliament has indicated a particular interest. Those categories of provision will be reported on in most detail in this and future reports.
This first report marks the beginning of our reporting process, with the new measures having been in place for only a short time, and new monitoring and reporting arrangements are being established or are in the process of being established to support their operation. We will continue to develop these arrangements and we will keep our overall approach under review in response to the requirements of the Scottish Parliament.
As noted above, in developing our approach to legislation and reporting, human rights impacts have been a key consideration. In this and subsequent reports we are seeking to provide evidence as far as is possible about those impacts for specific provisions. Examples are also given of where equality and rights have been considered as part of approaches to data collection on the measures contained in the Acts and, in recognition of the importance of understanding impacts of the use of these powers across the various different parts of society, in Scotland and across the UK, we are committed to looking at where we can include information disaggregated by protected characteristics in our reporting. This is an area of our reporting where our approach will continue to develop in response to how the powers in the legislation are used, and the data collections which are available as part of ongoing monitoring and implementation. We recognise that the Parliament's Equalities and Human Rights Committee is paying particular attention to this in relation to the Government's response to the crisis.
Statement by Ministers on necessity and status of provisions
Scottish Ministers have undertaken a review of the operation of the provisions of Part 1 of the Scottish Act, and the provisions of the UK Act for which the Scottish Parliament gave legislative consent, in order to consider whether the provisions remain necessary. Ministers are satisfied that the status of those provisions at the end of the reporting period is appropriate.
The report contains information as required by section 15 of the Scottish Act on all provisions in Part 1 of the Scottish Act and those provisions in the UK Act for which the Scottish Parliament gave its legislative consent.
Beyond this, we have reported in detail on a set of 14 powers covering both Acts, and supplementary information has been provided for these which gives more detail of their operation or, where powers have not been used, the reasons for this.
As at the end of the reporting period on 31 May 2020, all of the provisions in the UK Act for which the Scottish Parliament gave legislative consent have been commenced, with the exception of those in section 10 and sections 25-29 of the UK Act. All provisions in the Scottish Act commenced the day after Royal Assent, with the exception of paragraph 11(1) of schedule 3 which has not been commenced in the reporting period. No regulations have been made to suspend or revive any provision, or to alter the date of expiry.
Use of powers contained in the Coronavirus Acts
Our position has always been that creating additional powers does not automatically mean we will be required to use them and that decisions would be taken at the appropriate time, based on the situation here in Scotland and other parts of the UK.
Some of the powers in the legislation needed to be commenced immediately and have supported key elements of our response to the pandemic, whilst others have not been needed due to effectiveness of other action taken or because thresholds for use have not been met.
The UK Act enables Ministers to consider certain powers for suspension and revival if it is appropriate to suspend them at a particular point but they may be needed again in future, as well as to permanently expire provisions which are considered to no longer be needed in advance of the two year sunset clause in section 89. The Scottish Act contains similar provisions for suspension and revival, and provisions can be considered for expiry in advance of the six month sunset clause which applies to Part 1 of the Scottish Act. Taken together, these safeguards help to ensure the powers in the legislation can be used appropriately and proportionately, and that powers do not remain in force longer than they are required.
The regular reporting cycle for the provisions of both Acts will enable us to keep the overall operation of the powers under review and inform decisions on when specific measures are no longer needed. Our decisions will be guided by the course of the pandemic and by the expert advice underpinning the Scottish Government's overall response to it.
Within the material for each of the provisions covered in the report, links have been included to other relevant published material including declarations and directions relating to, or made under the powers in the Acts.
We welcome the opportunity to update the Scottish Parliament on the operation of the Coronavirus Acts and stand ready to engage with the Parliament in its scrutiny of this first report.
Michael Russell MSP
Cabinet Secretary for Constitution, Europe and External Affairs
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