Coronavirus (Recovery and Reform) (Scotland) Act 2022 - proposed extension of temporary justice provisions: statement of reasons

Overview

1. The Coronavirus (Recovery and Reform) (Scotland) Act 2022 (‘the 2022 Act’) includes a range of temporary justice measures that were originally due to expire on 30 November 2023 (as outlined in Section 52(1)). However, under section 52(3) the Scottish Ministers may extend the measures for one additional year at a time, (initially until 30 November 2024 but until no later than 30 November 2025), by regulations subject to the affirmative procedure. At the same time, the Scottish Ministers have the power to bring forward the expiry date of any particular measure so that it is not covered by any extension to the expiry date.

2. In November 2023, the Scottish Parliament passed The Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension and Expiry of Temporary Justice Measures) Regulations 2023, which expired some of the temporary measures and extended the expiry date for those which remained in force.

3. If Ministers decided that any of the provisions should be extended for a further, and final, year they were required to review the operation of each of the measures which remain in force and, whilst doing so, consult such persons as they consider appropriate^[1]. Following this, section 52 requires that they must lay before the Parliament:

• Regulations that would modify the expiry date, so it specifies a date one year later than the date for the time being specified. For this set of regulations, this would move the expiry date of the remaining provisions to end on 30 November 2025. These regulations are subject to affirmative procedure.
• A statement setting out the reasons for seeking the extension, the findings of the review, and the consultation undertaken.

4. Having conducted a review and consultation exercise, Ministers have now laid two sets of regulations before the Parliament:

• regulations subject to the negative procedure^[2] to expire the provisions that the Scottish Government believes are no longer required; and,
• regulations subject to the affirmative procedure^[3] to modify the expiry date that applies to the remaining provisions, with the effect being that they will be extended until the end of 30 November 2025.

Table 1 provides an overview of the measures these regulations expire and which they extend.

Background and legislative context

5. The temporary measures were originally introduced in 2020^[5], to give Scotland’s justice system the necessary flexibility, resilience and support to respond to the emerging challenges of the Covid-19 pandemic. There remain two key reasons as to why the Scottish Government proposes some of the remaining measures be extended until November 2025:

• The pandemic significantly increased criminal court backlogs, which continue to impact the justice system. Considerable progress is being made to reduce the backlog – the total number of outstanding scheduled trials fell by over 40% between January 2022 and July 2024 – but it remains high, and modelling by the Scottish Courts and Tribunals Service (SCTS) predicts that solemn backlogs will persist above pre-pandemic levels until 2026/27. In civil courts, the continuation of these provisions allows the courts the flexibility to use different modes of hearings in order to maximise case and estate capacity and throughput of cases. Without the mitigating effect of the temporary measures, which help ensure court resources are used efficiently, this timescale would increase and risk that some cases could not proceed.
• Although the pandemic was a catalyst for temporary legislative change, some of the measures have demonstrated that they have a valuable role to play in helping to modernise Scotland’s justice processes and make them more efficient. This is delivering better outcomes and experiences for the people using Scotland’s justice services. Whilst recognising that permanent reform will require primary legislation or the development of further civil court rules, it is appropriate to seek to extend the use of some of these valuable measures not only to promote the continued recovery of the justice system, but to ensure that welcome modernisations continue to be developed and assessed.

6. This Statement of Reasons sets out why the Scottish Government believes it is necessary and appropriate to extend the provisions specified in Table 1^[6]. It summarises the consultation that was undertaken with organisations, and the review, led by the Scottish Government, of the provisions’ operation and impact. A link to the consultation form is available to view here: Consultation (office.com).

7. Certain provisions have already been expired, under The Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Early Expiry of Provisions) Regulations 2023 (which came into force on 3 July 2023) and through The Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension and Expiry of Temporary Justice Measures) Regulations 2023 (which came into force on 29 November 2023).

8. The regulations in July 2023 expired the following provisions:

• Part 1, Chapter 2 in relation to attending civil proceedings in the Court of Session or raised under the Ordinary Cause Rules 1993. Mode of attendance for these civil proceedings is now covered by court rules^[7].
• Part 6, which ensured that criminal confiscation order proceedings in proceeds of crime cases could be postponed if Covid affected proceedings.

The regulations in November 2023 expired the following:

• Part 3: Failure to appear before court following police liberation – which enabled the courts to modify the date someone is required to attend court on an undertaking, if they failed to appear at court for a reason attributable to coronavirus.
• Part 5, Chapter 1: the provisions for how long a person can be kept on remand before trial in summary cases, and how long a person can be kept on remand pre-sentence pending inquiry into their physical or mental condition.
• Part 5, Chapter 2, relating to criminal procedure time limits’ adjournment periods – that removed the limit on how long a court could adjourn a summary case .

The November 2023 regulations also modified the expiry date in section 52(1) of the Act, with the effect that the remaining provisions were extended until the end of 30 November 2024.

9. Ambitions to make permanent any of the temporary justice measures would need further primary legislation. The Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill, announced in the Programme for Government 2024-25, seeks to make permanent those temporary measures that make justice processes more modern and efficient, thereby improving people's experiences of the justice system.

10. The temporary justice provisions relating to civil justice will, if considered to be of benefit to the courts and court users, be ultimately made permanent, through court rules. This reflects the long-standing policy position that court rules are the natural place for regulation of civil procedures in the Scottish Courts as they concern the day-to-day routine workings of the courts. Under the leadership of the Lord President of the Court of Session, it is the responsibility of the Scottish Civil Justice Council (SCJC) to keep the civil justice system under constant review and to consider and prepare draft rules of procedure for the Scottish civil courts.

Consultation

11. As part of the review of the operation of the temporary measures that have been in place since October 2022, the Scottish Government has engaged with organisations across Scotland’s justice system, including justice agencies, the legal profession, judiciary, local government, organisations supporting and representing victims, and third sector organisations with a particular interest in the provisions. They were invited to share their views and asked to reflect on how the provisions are being used, the effect they are having, and what the impact would be if they were not extended.

12. This included organisations who gave oral or written evidence on the provisions to the Criminal Justice Committee during its scrutiny of the 2022 Act. A list of the bodies invited to take part in the consultation can be found in Appendix 1.