Publication - Impact assessment

Coronavirus (Extension and Expiry)(Scotland) Bill: business and regulatory impact assessment

Published: 18 June 2021
Directorate: Constitution Directorate, +3 more … Children and Families Directorate, Justice Directorate, Learning Directorate
Part of: Coronavirus (COVID-19) in Scotland
ISBN: 9781802010350

Results of the business and regulatory impact assessment (BRIA) carried out to assess the impact of the provisions contained in the Coronavirus (Extension and Expiry)(Scotland) Bill.

Coronavirus (COVID-19) legislation

Supporting documents

Purpose and intended effect

What is being done

1. Current public health guidance^[1] continues to mean that businesses and public authorities operate very differently to the way they have done previously. In addition, revised Protection Levels were published in April 2021^[2] which set out updated packages of measures in the levels-based approach, taking into account the higher transmissibility of the B.1617.2 variant and the impact of the progress made in the vaccination roll-out. The Health Protection (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 21) Regulations 2021^[3] implement the approach. All restrictions will be kept under review in the event of new developments, such as the emergence of a new variant of concern, to ensure that they remain proportionate and necessary to support the ongoing public health response.

2. The Scottish Government continues to place great importance in responding to the coronavirus epidemic, and protecting the health of people living in Scotland.

3. The purpose of the Coronavirus (Extension and Expiry) (Scotland) Bill ("the Bill"), therefore, is to update a range of existing legislative measures which support various aspects of the ongoing response to the public health emergency caused by the coronavirus pandemic. The Bill amends the Scottish Acts which make temporary adjustments to respond to the pandemic. This Bill amends the expiry dates in Parts 1 of the Scottish Acts. At the same time the Bill also expires a number of provisions which are no longer considered necessary. Critically, the effect of this is to extend only those provisions which the Scottish Government considers remain essential in order for public services to be able to continue to discharge their functions in the most effective way during the current operating constraints. Many of the original provisions contained in the two Scottish Acts have already been expired in line with the Government's commitment to remove provisions that are no longer required to respond to the public health emergency.

Why

4. Coronavirus (COVID-19) continues to pose a significant threat to public health in Scotland. The Scottish Government is committed to taking all steps necessary to address that threat. The Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No.2) Act 2020 ("the Scottish Acts") contain provisions which make temporary adjustments to respond to the pandemic, for example, by enabling the justice system to immediately respond to rapidly-evolving priorities and develop new and innovative ways of working, and to protect the health of people living in Scotland, for example by limiting the need for face to face contact by providing for the electronic submission of certain documents. Those provisions were subject to an expiry date, which was extended by regulations^[4], but which cannot be extended beyond 30 September 2021.

5. COVID-19 is first and foremost a public health crisis, and the measures to combat it have been necessary to save lives. The restrictions put in place using powers under the Coronavirus Act 2020 that have been in place since March 2020^[5] have been extensive but necessary in order to limit transmission of the virus as far as possible. Public health measures needed to control and limit the spread of the virus continue to require a significant adjustment to the lives of those living in Scotland, to business in Scotland, and to the way public services are delivered and regulated.

6. After taking firm action to stop the spread of the virus by implementing a nationwide lockdown, the Scottish Government published Coronavirus (COVID-19): Framework for Decision Making^[6] in April 2020, setting out the principles and approach for responding to the epidemic based around managing four key harms: direct health impacts of COVID-19; non-COVID-19 health harms; societal impacts; and economic impacts. These harms are deeply inter-related: health harms impact on society and the economy, just as the societal and economic effects impact on physical and mental health and wellbeing.

7. The Scottish Government published COVID-19: Scotland's Strategic Framework in October 2020.^[7]A strategic approach to outbreak management based on graduated levels of protection was introduced in Scotland on 2 November 2020, with five packages of measures to apply different degrees of downward pressure on the Reproduction Rate (R) of the virus, according to different epidemiological conditions in the areas in which they are applied. The levels were designed to be applied locally, regionally or nationally, depending on the course of the pandemic.

8. An update to COVID-19: Scotland's Strategic Framework was published in February 2021,^[8] in which the Scottish Government re-confirmed its strategic intent to "suppress the virus to the lowest possible level and keep it there, while we strive to return to a more normal life for as many people as possible." It described six key tools for achieving this:

The quickest practical roll-out of vaccinations, in line with advice from the Joint Committee on Vaccination and Immunisation (JCVI);
The most effective use of testing and contact tracing;
Applying proportionate protective measures (rules and guidance) to suppress transmission of the virus;
Effective measures to manage the risk of importation of the virus;
Supporting individuals, businesses and organisations to adhere to protective measures; and
Providing care and support to mitigate the harms of the crisis.

9. The emergence of the Variants of Concern B.1.1.7 and B.1.617.2 have increased the transmissibility of the virus, making it more challenging to effectively suppress. This is one reason why public health measures continue to be required.

Overview of proposals

10. The Bill makes provision to expire the following provisions in Scottish Acts as they are deemed no longer necessary to support the ongoing public health response:

Temporary extension of moratoriums on diligence (multiple applications) (Section 3 and schedule 2: paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020);
Children and vulnerable adults: children's hearings (Section 4 and schedule 3: paragraphs 1 to 5 and 7 to 10 of the Coronavirus (Scotland) Act 2020);
Vulnerable adults: cases of adults with incapacity (Section 4 and schedule 3 paragraphs 11 of the Coronavirus (Scotland) Act 2020);
Community orders (Section 5 and schedule 4 paragraphs 12; 14; 15(1) reference to "and drug treatment and testing orders."; 15(6) reference to "or drug treatment and testing order" to expire; 16 definition of "drug treatment and testing order"; definition of "relevant local authority" 16(b) and definition of "specified period" of the Coronavirus (Scotland) Act 2020);
Freedom of information (Section 7 and schedule 6 paragraph 6 of the Coronavirus (Scotland) Act 2020);
Duties under the Public Finance and Accountability (Scotland) Act (Section 7 and schedule 6, paragraph 15 of the Coronavirus (Scotland) Act 2020);
Social Security (Section 8 and schedule 7 paragraph 1(b) and 5 of the Coronavirus (Scotland) Act 2020);
Irritancy clauses in commercial leases: non-payment of rent or other sums due (Section 8 and schedule 7 paragraph 6 and 7 of the Coronavirus (Scotland) Act 2020);
Student residential tenancy: termination by tenant (Schedule 1: paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii) and paragraph 3(3) and (4) of the Coronavirus (Scotland) (No.2) Act 2020);
Coronavirus Carer's Allowance Supplement (Section 2 and schedule 1 paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020);
Care Homes - Further provisions (Section 2 and schedule 1 paragraphs 22 and 23 of the Coronavirus (Scotland) (No.2) Act 2020);
Marriage and Civil Partnership (Section 2 and schedule 1 paragraph 24 of the Coronavirus (Scotland) (No.2) Act 2020).

11. The Bill also makes provision to extend Parts 1 of the two Scottish Acts which has the effect of ensuring that the following provisions in the Scottish Acts, which remain essential in order for public services to be able to continue to discharge their functions in the way they were intended to, will be available beyond 30 September 2021 to support various aspects of the ongoing response to the public health emergency:

Eviction from dwelling-houses (Section 2 and schedule 1: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020);
Temporary extension of moratoriums on diligence (Section 3 and schedule 2: paragraphs 1 and 4 of the Coronavirus (Scotland) Act 2020);
Courts and tribunals: conduct of business by electronic means (Section 5 and schedule 4: paragraphs 1-6 of the Coronavirus (Scotland) Act 2020);
Fiscal fines (Section 5 and schedule 4: paragraph 7 of the Coronavirus (Scotland) Act 2020);
Cases beginning with an appearance from custody (Section 5 and schedule 4: paragraphs 8 and 9 of the Coronavirus (Scotland) Act 2020);
Extension of time limits (Section 5 and schedule 4: paragraph 10 of the Coronavirus (Scotland) Act 2020);
Evidence (Section 5 and schedule 4: paragraph 11 of the Coronavirus (Scotland) Act 2020);
Community orders (Section 5 and schedule 4: paragraphs 13, 15 and 16 of the Coronavirus (Scotland) Act 2020);
Parole Board (Section 5 and schedule 4: paragraphs 17 and 18(1) and (3) of the Coronavirus (Scotland) Act 2020);
Release of prisoners (Section 5 and schedule 4: paragraphs 19 and 20 of the Coronavirus (Scotland) Act 2020);
Legal Aid (Section 5 and schedule 4: paragraphs 21 – 23 of the Coronavirus (Scotland) Act 2020);
Alcohol licensing (Section 6 and schedule 5 of the Coronavirus (Scotland) Act 2020) and Licensing other than alcohol licensing (Section 7 and schedule 6: paragraph 1 of the Coronavirus (Scotland) Act 2020);
Freedom of Information (Section 7 and schedule 6: paragraphs 2 and 7 of the Coronavirus (Scotland) Act 2020);
Freedom of Information (Section 5 and schedule 4: paragraph 12 of the Coronavirus (Scotland) (No.2) Act 2020);
Duties in respect of reports and other documents (Section 7 and schedule 6: paragraphs 8 – 10 of the Coronavirus (Scotland) Act 2020);
Local Authority meetings (Section 7 and schedule 6: paragraphs 11-14 of the Coronavirus (Scotland) Act 2020);
Duration of planning permission (Section 8 and schedule 7: paragraphs 8 – 10 of the Coronavirus (Scotland) Act 2020) and Listed buildings and conservation areas: consents (Section 5 and schedule 4: paragraph 2 of the Coronavirus (Scotland) (No.2) Act 2020);
Land registration: electronic delivery of copies to Registers of Scotland (Section 8 and schedule 7: paragraphs 11-14 of the Coronavirus (Scotland) Act 2020 and Section 5 and schedule 4: paragraphs 3-4 of the Coronavirus (Scotland) (No.2) Act 2020);
Scrutiny of subordinate legislation in urgent cases (Section 8 and schedule 7: paragraphs 23-30 of the Coronavirus (Scotland) Act 2020);
Student residential tenancy: termination by tenant (Section 2 and schedule 1: paragraphs 1 – 3 of the Coronavirus (Scotland) (No.2) Act 2020, except paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii) and paragraph 3(3) and (4) which are being expired);
Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears (Section 2 and schedule 1: paragraphs 4 and 5 of the Coronavirus (Scotland) (No.2) Act 2020);
Social care staff support fund (Section 2 and schedule 1: paragraph 7 of the Coronavirus (Scotland) (No.2) Act 2020);
Bankruptcy (Section 2 and schedule 1: paragraphs 8, 10 and 12 of the Coronavirus (Scotland) (No.2) Act 2020);
Mental Health: named person nomination (Section 2 and schedule 1: paragraph 15 of the Coronavirus (Scotland) (No.2) Act 2020);
Care Homes - Emergency directions and emergency intervention orders (Section 2 and schedule 1: paragraphs 16 – 17 of the Coronavirus (Scotland) (No.2) Act 2020);
Powers to purchase care home services and care at home providers (Section 2 and schedule 1: paragraphs 18 to 21 of the Coronavirus (Scotland) (No.2) Act 2020);
Criminal Justice - Criminal proceedings: extension of time limits (Section 3 and schedule 2: paragraph 1 of the Coronavirus (Scotland) (No.2) Act 2020);
Criminal Justice - Arrangements for the custody of persons detained at police stations (Section 3 and schedule 2: paragraphs 2 – 5 of the Coronavirus (Scotland) (No.2) Act 2020);
Criminal Justice - Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 (Section 3 and schedule 2: paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020);
Proceeds of Crime (Section 3 and schedule 2: paragraphs 8 and 9 of the Coronavirus (Scotland) (No.2) Act 2020);
Intimation etc. of documents (Section 3 and schedule 2: paragraph 10 of the Coronavirus (Scotland) (No.2) Act 2020);
Care services: giving of notices by the Care Inspectorate (Section 5 and schedule 4: paragraph 5 of the Coronavirus (Scotland) (No.2) Act 2020);
Execution of documents, etc. (Section 5 and schedule 4: paragraph 9 of the Coronavirus (Scotland) (No.2) Act 2020);
Council tax: exempt dwellings (Section 5 and schedule 4 paragraph 15 of Coronavirus (Scotland) (No.2) Act 2020);
Restriction on giving grant to businesses connected to tax havens (Section 5 and schedule 4: paragraph 16 of the Coronavirus (Scotland) (No.2) Act 2020).

12. As the Scottish Acts contained measures which required to respond to an emergency situation it was important that they contained a number of safeguards. These included: the relevant provisions in the Acts automatically expired less than six months after they came into force, although this could be extended by the Scottish Parliament for two further periods of six months; where a provision was no longer considered necessary, Scottish Ministers may bring it to an end earlier; Scottish Ministers are required to report on the continued need for the measures, and on the use of powers in the Scottish Acts, every two months.

13. These safeguards will continue to be in place for the duration of the extension period, with the expiry date of Parts 1 of the Scottish Acts being extended by this Bill for a six month period to 31 March 2022, with the Scottish Parliament given the power to extend the Acts for a further period of six months to 30 September 2022. Parliamentary agreement to approve such regulations would be made only if deemed necessary at that time. The Bill contains no provision to extend the Acts beyond 30 September 2022.

14. A number of provisions, as set out in paragraph 10, which, following engagement with stakeholders, are no longer deemed necessary to have in place beyond 30 September 2021, are expired in this Bill. The Scottish Government remains committed to keeping the provisions of the Scottish Acts, as extended by this Bill, under review at all times, under the now established review scheme.

Rationale for Government intervention

15. It is the Scottish Government's view that this legislation is necessary to respond to the specific circumstances found in Scotland. It is also the Scottish Government's view that this legislation will assist public services, business and consumers to continue to operate while taking account of new restrictions imposed upon them.

16. The Scottish Government is satisfied that the Bill contains necessary measures required to continue responding appropriately to the public health crisis. The Scottish Government is satisfied that all of the measures contained in the Bill are appropriate and proportionate, and, in line with the Scottish Acts, the Bill ensures the safeguards described above at paragraph 13 are provided for.

Consultation:

a) Within Government

17. All measures in the Scottish Acts still in force were considered within the Scottish Government to determine which ones are expected to remain essential beyond 30 September 2021 to respond to the continued public health crisis. The existing measures were considered against how necessary they continue to be; whether alternative existing legislative powers could be used to achieve the same effect now that more is known about the pandemic, and the Government's approach to tackling it, has developed; and what would occur if measures were not extended. The provisions contained within this Bill reflect the outcome of that government consultation and consideration.

b) Public Consultation

18. Section 15 of the Coronavirus (Scotland) Act 2020 and section 12 of the Coronavirus (Scotland) (No.2) Act 2020 require the Scottish Government to review and report on the operation of the provisions in Part 1 of the Scottish Acts every two months. As part of that reporting process, the Scottish Government consults with relevant stakeholders on individual measures, where appropriate. Given the continuing need to respond to the epidemic, in light of the ongoing public health measures which remain in place, it is important that some of the provisions in the Scottish Acts remain in force after 30 September 2021. Due to the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to undertake formal consultation on the Bill itself. However, the Scottish Government has built on the informal consultation carried out as part of the regular reporting process and has informally consulted, as appropriate, with public bodies affected by the measures to be expired and extended by the Bill. Details of that consultation, where available, is set out in the Policy Memorandum which accompanies the Bill.

c) Business

19. In order to respond as quickly as possible to ensure no legislative gap of necessary provision when the Scottish Acts expire on 30 September 2021, formal consultation with business was not possible.

Options

20. Two options have been considered: i) Do nothing and allow all measures in the Scottish Acts to expire on 30 September 2021; ii) Take forward a Bill which the Government proposes to progress under the emergency procedure to extend Parts 1 of the Scottish Acts which would have the effect of ensuring that provisions in the Scottish Acts which are not expired will be available beyond 30 September 2021 to respond appropriately to the on-going situation.

21. Option i) was ruled out. The measures taken in the Scottish Acts to respond to the pandemic reflect the magnitude of the challenge presented by it. Measures which have either fulfilled their purpose, or were no longer deemed necessary, have already been expired. Doing nothing will mean a loss of important measures which have aided in Scotland's response to the pandemic, which are still deemed necessary. This would leave businesses and members of the public without assistance from the Scottish Government and potentially exposed to disadvantage.

22. Option ii) is the Scottish Government's selected option as it addresses necessary measures as a matter where either no alternative legislative options are available within the required timeframe, or primary legislation, with associated Parliamentary scrutiny, has been identified as the best legislative solution.

Primary legislation which the Scottish Government proposes to progress under the emergency procedure

Sectors and groups affected

23. A wide range of sectors and groups continue to be affected as the Bill proposes the expiry or extension, as appropriate, of time-limited powers connected to the Scottish justice system, social security claimants, business, public services, tax system and consumers. These include, but are not restricted to:

Creditors
Debt Advice Agencies
Accountant in Bankruptcy
Students
Purpose Built Student Accommodation Providers
Universities and colleges providing accommodation
Further and Higher Education Sector Representatives
Registered Social landlords
Letting agents
Home owners
Adult and Children's Social Care
Children's Hearings Scotland (CHS)
National Convener of CHS
Scottish Children's Reporter Administration (SCRA)
Principal Reporter of SCRA
Social Security Scotland
Social security claimants
Police Scotland
Third Sector Organisations
Local Authorities
Scottish Information Commissioner
All public bodies subject to FoISA
Licensing Boards
Licence holders/applicants
Scottish Legal Aid Board
Solicitors and counsel
Scottish Prison Service (SPS)
Scottish Courts and Tribunal Service (SCTS)
Crown Office and Procurator Fiscal Service (COPFS)
Police Scotland
Individual taxpayers
Registers of Scotland

Consideration of measures to be expired

1. Temporary extension of moratoriums on diligence (multiple applications) (Section 3 and schedule 2: paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020)

Benefits

Section 3 and Schedule 2, paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020 remove the prohibition against benefitting from more than one moratorium on diligence in any 12 month period. The intention behind this amendment was to ensure that those who had recently had a moratorium prior to the on-set of the pandemic were not excluded from the effect of the changes. This provision has now been in place since 7 April 2020 and the policy rationale to protect those who had utilised a pre-pandemic 6 week moratorium no longer exists.

The expiry of these provisions will serve to protect the Article 1 Protocol 1 rights of creditors and prevent them from being unduly prejudiced by repeat moratorium applications that could result in sequential 6 month periods of protection from any debt recovery action.

The extension of the existing moratorium on diligence and bankruptcy from six weeks to six months remains in force and this prevents creditors from taking action against individuals who have financial difficulties, thus allowing those individuals time to find advice on how best to deal with their debts and, in current circumstances, also to recover from time-limited income shocks without having to take serious steps like applying for bankruptcy. This creates a 'breathing space' in which an individual can seek money advice, and find the right longer term solution for their circumstances.

Costs

There are no anticipated costs arising from the expiry of these provisions.

Scottish Firms Impact Test

Competition Assessment

No competition assessment is required.

Consumer Assessment

The primary purpose of the extended period of moratorium protection is to allow consumers experiencing problems with debt to seek advice and the appropriate solution without the threat of formal recovery action being instigated. These protections remain and the expiry of the provision that removes the prohibition against benefitting from more than one moratorium on diligence in any 12 month period is considered to have minimal impact on consumers. This was initially introduced to provide that those who had recently had a 6 week moratorium prior to the on-set of the pandemic were not excluded from the effect of the changes.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

Expiry of the provisions will see a reversion to normal practice, albeit retaining the extended period of moratorium protection. Monitoring and reporting of the use of the provisions have been on a bi-monthly basis to the Scottish Parliament.

Implementation and delivery plan

The expiry of these temporary provisions does not require any implementation or delivery plans.

Post-implementation review

The expiry of these temporary provisions will result in a return to the original legislative arrangements in place prior to the outbreak of the coronavirus pandemic. Therefore, there is no need for post-implementation review.

2. Children and vulnerable adults: children's hearings (Section 4 and schedule 3: paragraphs 1 to 5 and 7 to 10 of the Coronavirus (Scotland) Act 2020)

Benefits

The Coronavirus (Scotland) Act 2020 enabled the continuation of critical legal proceedings to keep children safe by relaxing the minimum composition requirements of children's hearings. That Act preserved necessary independent decision-making in respect of cases where compulsory intervention in the lives of children and families may be required. It promoted swifter, more efficient processing of hearings decision notifications by enabling electronic authentication. It enabled senior officers to adapt, extend or vary their statutory functions with more agility to respond to the developing COVID-19 circumstances and its effect on their workforces. It prevented the lapsing of lawful orders protecting children because hearings proceedings on a given day might have to be cancelled. It promoted improved resilience and physical distancing by dis-applying rights and duties on children, families and partner agencies to attend in person. It provided additional support and flexibility to critical services provided by kinship and foster carers.

At the outbreak of COVID-19 there was less availability of staff and children's panel volunteers to deal with children's hearings and the number of hearings generated by child protection orders (CPO). There would be many good reasons why there cannot be a review hearing lawfully constituted within 72 hours, even remotely. The secure accommodation may become affected by the virus in that period, preventing the child being able to be involved in a hearing even remotely in an emergency. There was also significant challenges with convening a lawful children's hearing within existing timescales in the peak COVID-19 period. There was potential for a high number of children who needed to be moved from their kinship, foster or residential home in an unplanned way due to illness – the resilience and availability of alternative out of authority emergency placements was therefore impacted and authorities would have more difficulty in sourcing them. These provisions ensured the most vulnerable children are protected during these unprecedented times.

Costs

The Scottish Government has invested £2.5 million in the infrastructure across 2020/21 and 2021/22 to assist with a Children's Hearings Covid Recovery Plan.

Scottish Firms Impact Test

Reverting back to pre-COVID legislation will have no effect on Scottish business or consumers and therefore no formal consultation required.

Competition Assessment

No competition assessment is required.

Consumer Assessment

Children and families will see a system that is running back at normal levels and decisions made back at normal scheduled timescales which will be quicker when the emergency legislation expires.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances. Separate legislation updating the Children's Hearings Rules of Procedure which comes into force will allow a continuity of the electronic authentication process. During the pandemic the joint Digital Strategy between the Scottish Children's Reporter Administration and Children's Hearings Scotland has been implemented – this includes a modernised Case Management system able to support children and families more appropriately. A large scale project to allow children's hearings to be heard virtually and significant support services to users is in place.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

Expiry of Section 4 and schedule 3: paragraphs 1 to 5 and 7 to 10 will be reverting back to normal practice. Monitoring and reporting of the use of the emergency provisions has been on a bi-monthly basis to Scottish Parliament.

Implementation and delivery plan

The changes proposed by the Bill on children's hearings proceedings will be implemented by the Scottish Children's Reporter Administration and Children's Hearings Scotland via their already-implemented Business Continuity and resilience planning – activated in full as of 23 March 2020. Electronically- enabled virtual children's hearings are already taking place across Scotland. Similarly, secure accommodation providers and local authorities have been sighted on the proposals and are preparing to give effect to the new timescales, which will enable to reprioritise resources and staff to focus on children and families most in need or at risk.

Post-implementation review

3. Vulnerable adults: cases of adults with incapacity (Section 4 and schedule 3 paragraphs 11 of the Coronavirus (Scotland) Act 2020)

Benefits

The Bill extended the period of time for which guardians are appointed. This avoided the need to make applications for renewal of powers for those guardianships that would have expired during the period of crisis. When the provisions were introduced the courts were only hearing urgent interim guardianship cases, the Office of the Public Guardian had a minimal amount of staff available and there were less doctors, mental health officers and solicitors available to complete the documentation required for guardianship (and renewal of guardianship) applications. The provisions took the pressure off the above organisations and professionals, enabling them to concentrate on essential business. The same applies to extension of the period of time for which section 47 certificates for medical treatment are authorised.

Costs

The provisions have been suspended since September 2020. No additional costs have arisen since then and the Scottish Government does not expect there to be any additional costs as a result of the expiry of the provisions. Guardianship and section 47 certificates were extended for the emergency period, but renewal applications for guardianships and authorisation of new section 47 certificates had to be undertaken once the provisions were suspended and will continue to be completed once the provisions are expired.

Scottish Firms Impact Test

Reverting back to pre-COVID legislation will have no effect on Scottish business or consumers and therefore no formal consultation required.

Competition Assessment

No competition assessment is required.

Consumer Assessment

The Office of the Public Guardian and the Scottish Courts and Tribunals Service advise that they are processing guardianship applications as business as usual. There are delays getting mental health officer reports and doctors reports in some instances, however these are issues that were already present within the guardianship system, that are being addressed and that are not covid related.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

The continuing necessity to suspend the provisions was monitored closely by an Adults with Incapacity Emergency Legislation Commencement Consideration Group meeting every 4-5 weeks. Monitoring and reporting of the use of the emergency provisions has been on a bi-monthly basis to Scottish Parliament.

Implementation and delivery plan

The expiry of these temporary provisions does not require any implementation or delivery plans.

Post-implementation review

4. Community orders (Schedule 4 paragraphs 12; 14; 15(1) reference to "and drug treatment and testing orders."; 15(6) reference to "or drug treatment and testing order" to expire; 16 definition of "drug treatment and testing order"; definition of "relevant local authority" 16(b) and definition of "specified period" of the Coronavirus (Scotland) Act 2020)

Benefits

To date these provisions have not been used and, taking into account the likely progress of the pandemic and recovery work, the Scottish Government does not envisage any circumstance where they would be required in future.

The Scottish Government does not consider it proportionate or necessary to extend these provisions, therefore they should expire on 30 September 2021.

Costs

Expiry of these provisions does not create additional costs on the Scottish Government; does not create additional costs on local authorities; and does not create additional costs on other bodies, individuals and businesses.

Scottish Firms Impact Test

There is not considered to be an impact on Scottish business or consumers as a result of the expiry of these temporary provisions.

Competition Assessment

The expiry of these temporary provisions will not have any impact on competition.

Consumer Assessment

The expiry of these temporary provisions will have no direct impact on consumers.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

Monitoring and reporting to the Scottish Parliament on the use of these provisions has been carried out on a two-monthly basis, as required by the Scottish Acts. The expiry of these temporary provisions will result in a return to pre-COVID normal practice.

Implementation and delivery plan

The expiry of these temporary provisions does not require any implementation or delivery plans.

Post-implementation review

5. Freedom of information (Section 7 and schedule 6 paragraph 6 of the Coronavirus (Scotland) Act 2020)

Benefits

Where a Scottish public authority fails to comply with the timescales for responding to requests and requirements for review under the Freedom of Information (Scotland) Act 2002 (FOISA), this provision enables the Scottish Information Commissioner to decide that, notwithstanding the delay, the authority has complied with Part 1 of FOISA if certain conditions are met. Its expiry restores the original position in FOISA, meaning that a failure to comply with the timescales is a failure to comply with Part 1 of FOISA.

Costs

The expiry of this provision will not result in any additional costs.

Scottish Firms Impact Test

As already noted, due to the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to undertake formal consultation with Scottish business or consumers on the Bill itself. In any event, the expiry of the provision only affects Scottish public authorities. Most authorities are neither businesses nor consumers.

Competition Assessment

There is no need for a competition assessment.

Consumer Assessment

There is no need for a consumer assessment.

Test run of business forms

The expiry of this provision will not result in the introduction of any new business forms, so there is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of this provision does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of this provision does not give rise to any impact on the legal aid fund.

Enforcement, sanctions and monitoring

Following the expiry of this provision, Scottish public authorities' compliance with their duties under FOISA will be monitored and enforced by the Scottish Information Commissioner as they were before its introduction.

Implementation and delivery plan

The Scottish Government understands that the Scottish Information Commissioner may issue guidance to Scottish public authorities and requesters on the effect of the expiry of this provision. Officials will liaise with the Commissioner to support this work as necessary.

Post-implementation review

6. Duties under the Public Finance and Accountability (Scotland) Act (Section 7 and schedule 6, paragraph 15 of the Coronavirus (Scotland) Act 2020)

Benefits

The provisions allowed for amendment of the statutory deadlines for annual accounts as set by the Public Finance and Accountability Act 2000. The deadlines for such accounts were the 31 December 2020 and 31 December 2021 respectively. The first statutory deadline was met in December 2020 and there have been no requests to utilise this provision during the current reporting cycle for December 2021.

Costs

No impact is anticipated.

Scottish Firms Impact Test

The expiry of these temporary provisions will have no impact on Scottish Firms.

Competition Assessment

There is no impact on competition.

Consumer Assessment

There is no impact on consumers.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

There is no impact on enforcement, sanctions or monitoring.

Implementation and delivery plan

Officials will continue to work with Audit Scotland on the delivery of timely annual accounts.

Post-implementation review

7. Social Security (Section 8 and schedule 7 paragraph 1(b) and 5 of the Coronavirus (Scotland) Act 2020)

Benefits

The provisions which are to be expired by the Bill are paragraphs 1(b) and 5 of schedule 7 of the Coronavirus (Scotland) Act 2020, which relax the timescales which apply for Social Security Scotland making re-determinations.

Evidence suggests that these provisions brought some benefit in allowing the Agency to be able to manage redeterminations with reduced capacity as a result of coronavirus and by allowing clients additional time to provide information required for a redetermination to be made. This had the knock-on benefit of preventing redeterminations which were delayed by Coronavirus, and therefore not completed by the original deadline that existed without the extension, going to the First Tier Tribunal unnecessarily.

There has always been a need to balance the benefits of the provisions in tackling disruption caused by coronavirus against the risk that people's right to challenge, including a timely redetermination response by Social Security Scotland, might be undermined by delays to redeterminations being allowed under the provisions. Where previously the balance favoured accepting the risk of allowing the extension when weighed against the benefits to clients and the agency, the strategic approach to outbreak management based on five graduated levels of restrictions, which is providing for the easing of restrictions, has meant Social Security Scotland are now able to better manage their capacity and are confident processes are in place to handle the caseload. This means the balance now favours expiring these provisions on 31 September as it is anticipated the extended timescales will no longer be needed. As a result, redeterminations will return to being made within their usual timescales, in compliance with clients' rights to timely decision making.

Costs

Costs are anticipated to return to the level planned within the Social Security Programme, as they were prior to the crisis. There are no anticipated extra costs of these proposals as they provide an operational and administrative solution and do not impact on the level of assistance that a client is entitled to receive.

Scottish Firms Impact Test

As already noted, due to the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to undertake formal consultation with Scottish business or consumers on the Bill itself. There are no anticipated impacts, however. Social Security Scotland anticipate that working practices will return to those seen before the pandemic.

Competition Assessment

There is no need for a competition assessment.

Consumer Assessment

There is no need for a consumer assessment.

Test run of business forms

The expiry of this provision will not result in the introduction of any new business forms, so there is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of this provision does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of this provision does not give rise to any impact on the legal aid fund.

Enforcement, sanctions and monitoring

Following the expiry of this provision, Social Security Scotland's performance in relation to redeterminations will be monitored and reported on as part of normal reporting arrangements. There are no specific sanctions or enforcement considerations associated with the expiry of these provisions.

Implementation and delivery plan

The expiry of these temporary provisions does not require any implementation or delivery plans.

Post-implementation review

8. Irritancy clauses in commercial leases: non-payment of rent or other sums due (Section 8 and schedule 7 paragraph 6 and 7 of the Coronavirus (Scotland) Act 2020)

Benefits

The provisions extended the period that a landlord could evict a commercial tenant for non-payment of rent from 14 days to 14 weeks. This effectively allowed the tenant to defer rental payments for this period giving sufficient time for the parties to come together to reach mutually beneficial agreements which could include rental holidays deferment and reductions as well as leases restructuring where appropriate. The tenant was still expected to pay if they could and eviction was still possible after 14 weeks. The measures worked in conjunction with the voluntary UK-wide Code of Practice for the Commercial Property Sector which was introduced in June 2020 and is due to expire in June 2021. Together, anecdotally, the measures have worked well with many agreements being put into place although there is no way of assessing numbers being preventative in nature. This has assisted in retaining jobs and keeping businesses viable during the periods where opening was not possible or reduced.

Costs

There are no costs associated with the provisions.

Scottish Firms Impact Test

As already noted, due to the pre-election period and the need to have this legislation in force by 30 September 2021, it has not been possible to undertake formal consultation with Scottish business or consumers on the Bill itself. Informal consultation with major stakeholders consisting of the Royal Institution of Chartered Surveyors (RICS) and the Scottish Property Federation (SPF) indicate that they are content that the provision is expired.

Competition Assessment

There is no need for a competition assessment.

Consumer Assessment

There is no need for a consumer assessment.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

The measures changed the minimum period required for evicting a commercial tenant for non-payment of rent in a contractual agreement so any enforcement would be through the usual legal processes between the parties. However, no instances of any attempted breaches have been recorded. As noted above the provision was not capable of being monitored, being preventative in nature. On expiry it is not anticipated that there will be an avalanche of evictions as the provision was not absolute and eviction could still have taken place throughout the period it was in force.

Implementation and delivery plan

The expiry of these temporary provisions does not require any implementation or delivery plans.

Post-implementation review

9. Student residential tenancy: termination by tenant (Schedule 1: paragraph 3(2)(b)(i), the opening words of paragraph 3(2)(b)(ii), and paragraph 3(3) and (4) of the Coronavirus (Scotland) (No.2) Act 2020)

Benefits

These provisions temporarily provide for a 7 day notice to leave period for those currently tied into a student residential tenancy entered prior to 27 May 2020. The expiry of these measures could result in potential savings to providers who will now operate on a 28 day notice period. It should be noted that the Scottish Government believes the numbers of students who will be affected by the expiry of this provision to be low.

Costs

The potential costs associated with the expiry of these provisions are, assuming a 1 to 4 weeks rental loss for those students making use of the 7 day notice to leave resulting in a loss between £126 and £504. Again we believe the numbers of students involved to be low.

Scottish Firms Impact Test

Competition Assessment

As these provisions apply equally to all providers of purpose built student accommodation and halls of residence, they are unlikely to have any impact on competition.

Consumer Assessment

The student tenancy provisions will then enable all students living in purpose built student accommodation and halls of residence to give their landlord 28 days' notice to leave and this will continue to provide protection for consumers during the pandemic.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

The Scottish Government will work with key stakeholders including those representing students and accommodation providers through their student accommodation group to share guidance and monitor the impact of these measures.

Implementation and delivery plan

Guidance for students and affected accommodation providers will be updated as soon as feasible following completion of the Bill. This will ensure that students and those providing purpose built student accommodation and halls of residence can access information about their rights and responsibilities.

Post-implementation review

The expiry of these temporary provisions will result in a return to the original legislative arrangements in place prior to the coronavirus pandemic. Therefore, there is no need for post-implementation review.

10. Coronavirus Carer's Allowance Supplement (Section 2 and schedule 1 paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)

Benefits

Payment was made successfully to over 80,000 unpaid carers at the end of June 2020. Around 83,000 carers are expected to benefit once all backdated payments are made.

Costs

The Coronavirus Carer's Allowance Supplement provided 83,000 carers with a payment of £230.10 in June 2020, at a total expenditure of £19.2 million.

The Scottish Government does not anticipate any extra costs for business as a result of expiry of the provisions.

Scottish Firms Impact Test

Competition Assessment

No competition assessment is required.

Consumer Assessment

The expiry date for these provisions was, firstly extended to 31 March 2021 and subsequently to 30 September 2021 as part of the extension regulations to allow for the first round of backdated payments to be made. The Scottish Government is content that backdating can continue beyond expiry of the provision on the basis that the Interpretation and Legislative Reform (Scotland) Act 2010 will protect individual rights acquired while the provision was in force. The Scottish Government does not consider any saving or transitional provisions are therefore required in connection with expiry.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

No enforcement, sanctions or monitoring will be necessary.

Implementation and delivery plan

The Scottish Government is content that backdating can continue beyond expiry of the provision on the basis that the Interpretation and Legislative Reform (Scotland) Act 2010 will protect individual rights acquired while the provision was in force.

Post-implementation review

11. Care Homes - Further provisions (Section 2 and schedule 1 paragraphs 22 and 23 of the Coronavirus (Scotland) (No.2) Act 2020)

Benefits

Preparing the fortnightly report has reduced the Care Inspectorate's capacity to carry out wider scrutiny activity. Further, a near normal pre-coronavirus pandemic process is now in place meaning full inspection reports are being published around the same time as the associated and less detailed parliamentary report. The weekly reporting of deaths is heavily reliant on accurate reporting by care homes, which is not always available. Furthermore, the official statistics published by National Records of Scotland are now well established.

Expiring these provisions will therefore remove unnecessary duplication of effort which keeps inspection teams and wider Care Inspectorate resources under pressure and will increase capacity to carry out wider scrutiny work. The Scottish Government does not consider it proportionate or necessary to extend these provisions, therefore they should expire on 30 September 2021.

Costs

The Care Inspectorate repurposed their business in response to the coronavirus pandemic. The Scottish Government acknowledges the Care Inspectorate's view that the preparation and publication of the fortnightly report on inspections has placed pressures on operational capacity.

Expiry of these temporary provisions will enable the Care Inspectorate to return to the original legislative arrangements in place prior to the outbreak of the coronavirus pandemic. The Scottish Government will request that the Care Inspectorate includes details of the impact of the coronavirus pandemic in its next Annual Report and Accounts.

Scottish Firms Impact Test

Competition Assessment

No competition assessment is required.

Consumer Assessment

The fortnightly reports have been helpful in getting information into the public domain more quickly to provide assurance to the Scottish Ministers, Parliament and the public at a time where levels of anxiety about the safety and wellbeing of care home residents and staff was understandably high.

The weekly reporting of deaths has provided useful data and has been a key part to the overall process during the pandemic.

A near normal pre-coronavirus pandemic process is now in place at the Care Inspectorate meaning full inspection reports are being published around the same time as the associated and less detailed parliamentary report. The Care Inspectorate will continue to work to a target of 20 days for a draft report to be sent to a provider for a factual accuracy check and subsequently for inspection reports to be published.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

The expiry of these temporary provisions will result in a return to the original legislative arrangements in place prior to the outbreak of the coronavirus pandemic.

In addition to the implementation and delivery plan described below, the Scottish Government will continue to work closely with the Care Inspectorate to consider how best to make use of data they collect, and to review the Executive Framework document and Reporting and Communications Protocol to ensure the body is carrying out its statutory duties and operating effectively.

Implementation and delivery plan

In response to the coronavirus pandemic the Care Inspectorate published a revised Scrutiny, Assurance and Improvement Plan 2020-21^[9] where they set out that, notwithstanding the fortnightly report to the Scottish Parliament, they would continue to publish more detailed, individual inspection reports that follow normal protocols, and that during the emergency period they had reduced this to publication in around ten days.

The expiry of these temporary provisions will result in a return to the original legislative arrangements in place prior to the outbreak of the coronavirus pandemic. The Care Inspectorate will continue to work to a target of 20 days for a draft report to be sent to a provider for a factual accuracy check and subsequently for inspection reports to be published. The Scrutiny, Assurance and Improvement Plan will be reviewed at a later date.

Post-implementation review

12. Marriage and Civil Partnership (Section 2 and schedule 1 paragraph 24 of the Coronavirus (Scotland) (No.2) Act 2020)

Benefits

The policy underpinning the provision can continue to be delivered after the provision has expired. Further, the right of men and women of marriageable age to marry is already protected by Article 12 of the European Convention on Human Rights (ECHR). Guidance published on the Scottish Government website, and regularly reviewed, has assisted couples planning to marry or register a civil partnership and celebrants to understand and take account of relevant restrictions.^[10] Also, as part of their existing work on publishing statistics on vital events, National Records of Scotland (NRS) provide quarterly figures on their website on the number of marriages and civil partnerships taking place.^[11]

Costs

The Scottish Government has not identified any costs as a result of the expiry of the provision on marriage and civil partnership.

Scottish Firms Impact Test

Competition Assessment

No competition assessment is required.

Consumer Assessment

No consumer assessment is required.

Test run of business forms

There is no current need for the test run of business forms.

Digital Impact Test

No digital impact test is required. The expiry of these temporary provisions does not give rise to any immediate or direct impact on technology or technological advances.

Legal Aid Impact Test

The expiry of these temporary provisions does not give rise to an immediate impact on the legal aid fund.

Enforcement, sanctions and monitoring

The guidance for couples planning to marry of enter a civil partnership will continue to be reviewed regularly.

Implementation and delivery plan

No implementation or delivery planning is necessary.

Post-implementation review

Contact

Email: Covid.Leg@gov.scot

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