Individual Bill provisions and impact on equality
Measures to be expired
Temporary extension of moratoriums on diligence (multiple applications) (Section 3 and schedule 2: paragraphs 2 and 3 of the Coronavirus (Scotland) Act 2020)
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. However, the extended 6 month period of moratorium protection remains and the impact on equality is assessed as follows:
Age: The Money Advice Service estimates that 1% of the over-indebted population is aged over 65. The Wyman Review suggests that 7% of debt advice clients are aged over 65. Income shocks arising from COVID-19, and thus the undermining of people's ability to meet their debts as they fall due, are more likely to affect the working age population. Consequently, the impact of the expiry of provisions that enable more than one moratorium application to be submitted in a 12 month period is unlikely to have significant impact on those aged over 65.
Gender: the Money Advice Service estimates that 64% of over-indebted people are female, whilst the Wyman Review suggests that 59% of debt advice clients are female. This suggests that extending the moratorium is more likely to benefit females than males, both because females are more likely to be over-indebted but also because they are more likely to take-up debt advice. Although the extended moratorium period provides greater scope to seek advice and establish the appropriate solution for problem debt, the expiry of provisions that enable more than one moratorium application to be submitted in a 12 month period is unlikely to have significant impact.
Disability: the Wyman Review estimates that 40% of debt advice clients suffer from a disability or long-term health condition. Disability may restrict the channels through which debtors may seek advice. For example, the Money and Mental Health Policy Institute suggests that those with mental health problems are 22 percentage points more likely than the population in general to have serious difficulty carrying out essential administration over the phone. Likewise, difficulties of physical access may make seeking face-to-face debt advice problematic for those with physical health problems. Scotland's debt advice sector is very used to ensuring these concerns can be addressed. Although the extended moratorium period provides greater scope to seek advice and establish the appropriate solution for problem debt, the expiry of provisions that enable more than one moratorium application to be submitted in a 12 month period is unlikely to have significant impact.
The Scottish Government has not identified any positive or negative impact on people with any of the other protected characteristics that may arise as a result of this policy.
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)
Expiry of the Coronavirus (Scotland) Act 2020 children's provisions will mean that Children's Hearings will revert back to normal pre-COVID procedure with a strengthening of rights from the current emergency extensions to original timescales resulting in quicker decisions and outcomes. The Bill makes necessary temporary transitional provision to promote transparency for families and to prevent any risk of unplanned expiry of compulsory supervision orders. This will support orderly expiry and ensure rights, child protection and children's hearing administration work effectively and as intended post 30 September – this will be extremely short-term transitional provision in relation to orders already issued and appeal timescales already applied.
However, it is clear from the operation of the children's hearings system since April 2020 that the use of virtual or blended hearings will be a necessary longer term option and permitting the use of electronic signatures does represent a time and cost saving with no discernible adverse impacts for children, families or system participants. Electronic signatures are permissible in current court practice in Scotland. Therefore, permanent changes have been made to allow electronic hearings. These changes are made in The Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Amendment Rules 2021 which will come into force from 26 July 2021, and are accompanied by relevant impact assessments.
Vulnerable adults: cases of adults with incapacity (Section 4 and schedule 3 paragraphs 11 of the Coronavirus (Scotland) Act 2020)
Any intervention under the Adults with Incapacity Act has to comply with the section 1 principles which apply equally to anyone coming under the provisions of this legislation. The Scottish Government considers there may be a positive impact for elderly or disabled people who may be more disproportionately affected by the amendments to the provisions in relation to adults with incapacity. The amendments to ensure guardianship appointments remain in place during the pandemic period; and that the authorisation of medical treatment by a section 47 certificate continues, benefitted incapacitated adults with the protected characteristics of age and disability. The expiry of these temporary provisions will not have any particular impact on individuals on the basis of gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
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)
Taking into account the progress of the pandemic and recovery work, as well as use of powers to date (or not), the Scottish Government does not consider it proportionate or necessary to extend these provisions. They will therefore be expired by the Bill on 30 September 2021.
Age: It is not anticipated that the expiry of these provisions will involve a significant impact for this category.
Sex/Gender: The expiry of these temporary provisions will not have any particular impact on individuals on the basis of sex/gender.
Disability: The expiry of these temporary provisions will not have any particular impact on individuals on the basis of disability.
Race, Religion or Belief, Sexual Orientation, Gender Reassignment, and Pregnancy/Maternity: The expiry of these provisions would have no specific impacts on people with these protected characteristics.
Freedom of information (Section 7 and schedule 6 paragraph 6 of the Coronavirus (Scotland) Act 2020)
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. The expiry of this provision restores the pre-existing position in FOISA where the Commissioner had no such discretion.
The impact of expiring this provision solely affects Scottish public authorities. Accordingly, the Scottish Government has not identified any positive or negative impact on any of the protected characteristics that may arise as a result of this policy.
Duties under the Public Finance and Accountability (Scotland) Act (Section 7 and schedule 6, paragraph 15 of the Coronavirus (Scotland) Act 2020)
The impact of expiring this provision solely affects Scottish public bodies. Accordingly, the Scottish Government has not identified any positive or negative impact on any of the protected characteristics that may arise as a result of this policy.
Social Security (Section 8 and schedule 7 paragraph 1(b) and 5 of the Coronavirus (Scotland) Act 2020)
The aim of these temporary provisions was to support, during the escalating coronavirus pandemic, Social Security Scotland in being able to maintain their services at 'pre-covid-19' levels, and to recognise that individuals might need a longer period of time to provide information to inform a re-determination if they were impacted by coronavirus.
The expiry of these temporary provisions will result in a return to the original legislative arrangements in place prior to the coronavirus pandemic, such that redeterminations will be required to once again be made within the original timescale. There is no anticipated detrimental impact on any individual's rights.
The Bill will expire the provision in September 2021. The Scottish Government is content a redetermination process already commenced 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 provisions applied equally to anyone requesting a redetermination, and any use of the provisions is based only on the need to mitigate the impact of delays in processing redeterminations as a result of disruption caused by coronavirus. The Scottish Government has therefore concluded that the expiry of the provisions will have no impact on people with protected characteristics.
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)
It is not anticipated that the expiry of this measure will have a significant impact on any person within the protected characteristics.
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)
It is not anticipated that the expiry of this measure will have a significant impact on any person within the protected characteristics.
Coronavirus Carer's Allowance Supplement (Section 2 and schedule 1 paragraph 6 of the Coronavirus (Scotland) (No.2) Act 2020)
The aim of this provision was to improve outcomes for carers in receipt of Carer's Allowance by providing some additional financial support to mitigate the impacts of the coronavirus pandemic. 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.
The Supplement has had a disproportionately positive impact on women, as more than two thirds of recipients (69 per cent) are female.
Figures on the number of disabled people receiving Carer's Allowance are not publicly available, though benefit combination information suggests that in August around 13,600 working age carers meeting the eligibility criteria for Carer's Allowance were also in receipt of Disability Living Allowance or Personal Independence Payment. A further 15,000 state pension age carers meet the entitling conditions for Carer's Allowance and are in receipt of one of Personal Independence Payment, Disability Living Allowance or Attendance Allowance. Among the broader group of unpaid carers caring for 35 hours or more per week, 50% of unpaid carers reported they had one or more long term conditions.
The Bill will expire the provision in September 2021. 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 has not identified any differential impacts on people with protected characteristics as a result of the expiry of this provision.
Care Homes - Further provisions (Section 2 and schedule 1 paragraphs 22 and 23 of the Coronavirus (Scotland) (No.2) Act 2020)
The fortnightly reports on inspections have been helpful in getting information into the public domain more quickly to provide assurance at a time where levels of anxiety about the safety and wellbeing of care home residents and staff was understandably high.
However, a near normal pre-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 official statistics published by National Records of Scotland are now well established, meaning that there is no necessity for the weekly reporting of deaths in care homes through the use of temporary provisions.
The Scottish Government has not identified any differential impact on people with protected characteristics as a result of expiring these provisions, as they have established what is primarily an enhanced reporting and inspecting mechanism, which will revert to the reporting and inspecting processes that were in place before the coronavirus pandemic.
Marriage and Civil Partnership (Section 2 and schedule 1 paragraph 24 of the Coronavirus (Scotland) (No.2) Act 2020)
The Scottish Government has not identified any differential impact on people with protected characteristic(s) as the policy underpinning the provision can continue to be delivered after the provision has expired. Article 12 of the ECHR already protects the right of men and women of marriageable age to marry. The expiry of the provision will not affect either the existence of the ECHR protection or the Scottish Government's policy to ensure the continued availability of marriage and civil partnership.
National Records of Scotland (NRS) publishes quarterly statistics on vital events, including on the number of marriages and civil partnerships. Based on the provisional data for 2020, there has been a reduction in the number of marriages in 2020 compared to the position in 2019 (26,007 in 2019 and 11,986 in 2020). For civil partnerships, the provisional data for 2020 indicates that 72 civil partnerships were registered in 2020. This also represents a reduction compared to the 83 civil partnerships registered in 2019.
NRS provisional data is not yet available broken down by sex. In 2019, there were 26,007 marriages and 83 civil partnerships, and slightly more women married (26,225) compared to men (25,789). Ensuring people of both sexes are still able to marry protects their Article 12 ECHR right, marriage and civil partnership is also a way in which fathers and second female parents can obtain parental responsibilities and rights ("PRRs").
In 2019, there were 13,372 marriage carried out by religious and belief bodies. The continued availability of marriage has been of particular importance to persons of faith. For couples for whom cohabitation before marriage is incompatible with their faith, they are able to marry and to begin their married life together. The Scottish Government has engaged with religious and belief bodies on the impact of the pandemic on marriage and civil partnership.
NRS provisional data for 2020 indicates that of the 11,986 marriages, 424 were same sex marriages. In 2020, 33 civil partnerships involved parties who were both male and 39 involved parties who were both female. This can be compared to the position in 2019. In 2019, 912 of the overall number of marriages (26,007 ) were same sex marriages. There were 83 civil partnerships, 50 involving male couples and 33 involving female couples.
In considering the expiry of the provision, the Scottish Government considered that the right of men and women of marriageable age to marry is already protected by Article 12 of the ECHR. While the right of same sex couples to marry or enter into civil partnerships is not similarly protected, any restriction that applied only to, or disproportionately to, such relationships would likely constitute a violation of Article 14 of the ECHR (protection from discrimination) in conjunction with Article 8 (respect for private and family life). In any event, there is no likelihood of restrictions being imposed in a way that treats those relationships less favourably.
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