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COVID-19 Recovery Committee

Deputy First Minister and Cabinet Secretary for Covid Recovery follow up to the session on 31 March 2022

Letter from Deputy First Minister and Cabinet Secretary for COVID Recovery, Scottish Government to the Convener, 8 April 2022

Dear Siobhian

I am writing to follow up on the commitments I gave during the session on 31 March. I hope the committee finds this helpful, but if there are any further points on which clarification would be useful, I would be happy to provide that where possible.

I committed to write to the committee on the two issues shown under the first bullet below. A number of other key points arose during the session and this response also provides further information about these issues.

For clarity, this response covers the following points:

Power to modify primary legislation - the power contained in section 86F(2)(d) – the so-called Henry VIII power – which allows for changes to be made to primary legislation via public health protection regulations; and the use of similar provisions under section 94(3) of the Public Health etc. (Scotland) Act 2008 (“the 2008 Act”);
The distinction between regulations which directly and indirectly impose restrictions or requirements as set out in sections 86B and 86C respectively;
The process for reviews under section 86G;
The different safeguards with regards to certain special restrictions and requirements under the new public health provisions as compared to provisions in the 2008 Act;
The rationale for the decision to focus the 2008 Act on localised responses; and
The purpose of the monitoring provisions in section 86H.

Power to modify primary legislation

The Committee is correct to note that this is a significant power, and I stress that the Scottish Government has not included it lightly. However, in doing so, we are mindful of several points.

First, it is important to note that this is part of the wider power at section 86A which contains several important safeguards and thresholds. The full powers, as members are aware, have been included to enable regulations to be made to respond to a public health threat. The provisions in such regulations would of course depend on the nature of that threat and the measures required to respond to it. Enabling modification of other enactments as part of that overall power is an important safeguard. It may, for example, be necessary to modify existing law to ensure that public health regulations can be implemented effectively or to align the statute book to prevent confusion, for example where necessary public health regulations might contradict existing legislation.

As an illustration, during the pandemic, Ministers did not have an option to use this power; however, it was in fact necessary to modify provision in primary legislation as part of the pandemic response.

The requirement for Health Boards to provide compensation for those asked to self-isolate, contained in the 2008 Act, was modified by the Coronavirus Act 2020. Without that modification, Health Boards would have been overwhelmed with the financial and administrative burden of that duty. As the sunset clause for that Act took effect in March this year, it was necessary to bring forward additional expedited primary legislation (The Coronavirus (Discretionary Compensation for Self-Isolation (Scotland) Act 2022) to continue that modification for a period.

Although in this instance, modifications were effected by primary legislation, that may not always be feasible. The pandemic showed beyond a doubt that speed is vital in some circumstances, as is flexibility to respond to outcomes or choices that may not have been immediately foreseeable. It is therefore conceivable that some modifications may go to the heart of the public health response we would seek to achieve using the section 86A power. For this reason, building on our pandemic experiences, we have added to the current Schedule 19 power and included this element to strengthen our future responses.

Secondly, while we understand that there have been concerns raised around this element of the power, it is not without precedent to include such a power to assist in an emergency response. In addition to the power contained in section 94 of the 2008 Act, section 100 of the Burial and Cremation (Scotland) Act 2016 provides a power to suspend or modify certain enactments “for the purpose of protecting public health”.

At Committee, I was asked about use of the section 94 power. I can confirm that it was not used during the pandemic to modify enactments; however, its lack of use for that purpose, far from demonstrating that the power will never be needed, rather demonstrates that it is possible to have a power on the statute book without it being used as a default.

Thirdly, as with all regulations made under section 86A, this power could only be used as part of a response to a public health threat that presents or could present a significant harm to human health, and Parliament would have opportunity to scrutinise all such regulations. Even if, for reasons of urgency, the made affirmative power was used for such a modification, Parliament could still allow the regulations to lapse if it disagreed with their content.

I believe that these three points justify the inclusion of the power, and provide comfort to the Committee with regards to the safeguards against inappropriate use. However, as I have emphasised throughout this process, the benefit of this level of scrutiny is the opportunity to build a strong public health framework that allows Ministers to respond flexibly to threats, and maintains protections for Parliament and individuals. As I said during the Committee session, I am open to considering any recommendations the Committee may wish to make on this matter that will not unduly constrain Scotland’s ability to mount a meaningful public health response.

Direct and indirect imposition of restrictions and requirements

Members sought clarity on the distinction between regulations directly and indirectly imposing restrictions and requirements. At its most simple, this refers to restrictions or requirements that can be imposed directly by regulations, described in section 86B, and those which are imposed by a decision maker who is empowered under regulations to take a decision to impose the restriction or requirement, as described in section 86C.

Examples of restrictions and requirements that can be directly imposed by regulations include a requirement to wear a face-covering in prescribed settings, or a requirement for certain prescribed premises to be closed. In these instances, the regulations impose the restriction or requirement directly.

In contrast, regulations made under section 86C would not themselves impose a restriction or requirement but rather would allow a person, such as a local authority or health board, to make a decision which leads to a restriction or requirement. For example, regulations might give local authorities the power to require that certain types of premises have to close – but the closure would not happen directly as a result of the regulations; it would happen when the local authority makes the decision to do so. A special restriction or requirement cannot be imposed in this way except in response to a serious and imminent threat to public health.

Including the possibility of these indirect restrictions offers flexibility; for example, it could allow local decision-makers to impose restrictions or requirements that may not be necessary in all parts of Scotland at the same time, but which may still be useful to prevent more widespread harm over the course of a serious and imminent public health threat.

It is also worth noting that certain special restrictions and requirements, namely the requirements that a person submit to medical examination, be removed to or detained in a hospital and that a person be kept in quarantine, cannot be imposed directly by regulations. In the case of these restrictions, this reliance on indirect imposition is a vital means of safeguarding the rights of individuals.

The review process under section 86G

During questioning, it was suggested that the Bill should go further and set out the terms under which regulations would be reviewed.

I can assure members that, in all circumstances, measures would be kept under continual review to ensure they remained in place no longer than was strictly necessary to achieve the public health aim. This has been the case during the pandemic, and would be so for any future response using these permanent powers.

However, it is the Government’s strong view that the regulations themselves would be the most appropriate place to set out any review requirements, as this will depend on the type of threat faced and the measures required to respond.

As all regulations made under these powers would be subject to scrutiny, proceeding in this way would also ensure a more active Parliamentary role in determining the suitability of review requirements than would be the case if a single review requirement, which cannot be tailored to specific circumstances, is included in this Bill.

Safeguards in place relating to certain special restrictions and requirements

During the session, I was asked why, unlike the 2008 Act, certain restrictions and requirements which can be imposed under the public health power in the Bill do not require an application to be made to a sheriff before they can be imposed, and how human rights have been safeguarded in the new provisions.

First and foremost, I can assure the Committee that this Government will continue to safeguard the human rights of individuals. However, for reasons noted above on review processes, it is the government’s view that regulations themselves are the best place to set out full details of the review and appeals process that will attach to imposition of special restrictions.

However, the Bill requires that certain safeguards must be included: in section 86F(4) the Bill stipulates that regulations which impose a special restriction or requirement must provide for the right of appeal to the sheriff, section 86E(3) makes provision regarding conditions which must apply in respect of any medical examination and section 86G makes specific provision for the automatic review of any decision to detain or quarantine an individual (without the need for an application to be made). Whilst the manner of imposition of certain special requirements contained in the Bill look slightly different to provisions already in the 2008 Act, the Bill retains significant safeguards around the use of that power.

For clarity, the powers in the 2008 Act were designed to enable local Health Boards to lead the management of disease outbreaks – for example where there is only one suspected case of a disease known to be highly infectious or where a contaminant is limited to one place. In such circumstances, even if the current Bill provisions are enacted, Health Boards should continue to rely on the provisions in the 2008 Act which require that an application is made to the sheriff to grant certain orders (such as an order for a person to be medically examined). In contrast, the new powers are designed to respond to a threat that requires a more coordinated and centralised response because a local one would be insufficient. They have been designed to complement the powers already in the 2008 Act, and in recognition of the speed with which decisions with national implications may have to be taken, a different range of safeguards have been designed.

Focus of the 2008 Act

During the session, members asked why the 2008 Act didn’t more closely align with powers added in The Health and Social Care Act 2008, which applies in England and Wales.

During the 2007/2008 Parliamentary year, both the Scottish Parliament and the UK Parliament passed public health legislation. Both Acts followed public consultation: in Scotland, consultation launched in October 2006, and in England, in March 2007. The provisions within each Act differed, largely based on the intent behind the legislation.

The Scottish legislation aimed to strengthen public health protection in Scotland by enabling Health Board-led management of disease outbreaks. It was not intended to provide a broad power that would enable a coordinated response, such as the powers we have relied upon during the pandemic.

However, our experience of the pandemic has shown that there are circumstances where such a centralised response is vital and this Bill, if it has the backing of Parliament, will enable that for the future.

Monitoring provisions in section 86H

Finally, I turn to the question asked around the monitoring provisions contained within section 86H of the Bill. This power would be used to allow bodies to monitor public health threats, facilitating the detection of any risks at an early stage and thus building our resilience against future public health threats.

In my answers to Committee, I wrongly suggested that this monitoring power could only be used in a pandemic. This is not the case. This provision allows Scottish Ministers to confer functions in relation to the monitoring of public health risks at any time; it does not require there to be a public health risk in existence at the time.

Yours sincerely,

John Swinney
Deputy First Minister and Cabinet Secretary for COVID Recovery,
Scottish Government

Annex

By virtue of the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2022

Act	Provision	Details
First Scottish Act	Section 2 and schedule 1, paragraphs 2, 4 and 6 to 10 – Eviction from dwelling-houses (Extended notice periods)	Proposed for expiry on 30 March 2022.
First Scottish Act	Section 7 and schedule 6, paragraphs 11, 12 and 14 – Local authority meetings	Proposed for expiry on 30 March 2022.
First Scottish Act	Section 8 and schedule 7, paragraphs 6 and 7 – Irritancy clauses in commercial leases: non-payment of rent or other sums due	Proposed for expiry on 30 March 2022.
Second Scottish Act	Section 5 and schedule 4, paragraph 14 – Council tax: exempt dwellings	Proposed for expiry on 30 March 2022.

Per Annex A of the Policy Memorandum to the Coronavirus (Recovery and Reform) (Scotland) Bill (published 26 January 2022)

Act	Provision	Details
First Scottish Act	Section 3 and schedule 2 – Temporary extension of moratoria on diligence	Paragraphs 2 and 3 of schedule 2 expired at the end of 30 September 2021 as part of the Extension and Expiry Act.
First Scottish Act	Section 4 and schedule 3 – Children and vulnerable adults	Paragraph 2(2)^{^[1]} of schedule 3 expired on 30 March 2021 and paragraph 6^{^[2]} of schedule 3 expired on 29 September 2020. As part of the Extension and Expiry Act, the whole of schedule 3 expired at the end of 30 September 2021, subject to transitional and saving provisions, and section 4 was repealed.
First Scottish Act	Section 5 and schedule 4, Part 5 – Evidence	As part of the Extension and Expiry Act, part 5 of schedule 4 expired at the end of 30 September 2021 subject to saving provision in the Extension and Expiry Act (Evidence) (Saving Provision) Regulations 2021.[3]
First Scottish Act	Section 5 and schedule 4, Part 6 – Community orders	As part of the Extension and Expiry Act paragraphs 12 and 14 of schedule 4 expired at the end of 30 September 2021. In addition, paragraph 15 was partially expired at the end of 30 September 2021 such that the regulation making power in that paragraph can no longer be used in relation to drug treatment and testing orders.
First Scottish Act	Section 5 and schedule 4, Part 7 – Parole Board	Paragraphs 18(2), 18(4) and 18(5) of schedule 4 expired on 14 June 2021.[4] Paragraphs 18(1) and 18(3) of schedule 4 will expire on 10 March 2022.[5]
First Scottish Act	Section 6 and schedule 5 – Alcohol Licensing	Paragraph 4(5)(d) of schedule 5 expired at the end of 30 September 2021 as part of the Extension and Expiry Act.
First Scottish Act	Section 7 and schedule 6, Part 2 – Freedom of Information (FOI)	Paragraphs 3, 4 and 5 of schedule 6 were repealed by the Second Scottish Act. As part of the Extension and Expiry Act paragraph 6 of schedule 6 expired at the end of 30 September 2021.
First Scottish Act	Section 7 and schedule 6, Part 4 – Local Authority meetings	As part of the Extension and Expiry Act paragraph 11(a) of schedule 6 was repealed and paragraph 13 of schedule 6 was expired.
First Scottish Act	Section 7 and schedule 6, Part 5 – Duties under the Public Finance and Accountability (Scotland) Act 2000	As part of the Extension and Expiry Act, part 5 of schedule 6 expired at the end of 30 September 2021.
First Scottish Act	Section 8 and schedule 7, paragraphs 1 to 5 – Social security	Paragraphs 1(a), 2, 3 and 4 of schedule 7 expired on 29 September 2020.[6] Paragraphs 1(b) and 5 of schedule 7 expired at the end of 30 September 2021 by the Extension and Expiry Act.
First Scottish Act	Section 8 and schedule 7, paragraphs 11 to 19 – Land Registration	Paragraphs 15 to 18 of schedule 7 expired on 30 March 2021.[7] Paragraph 19 of schedule 7 expired on 30 June 2021.[8]
First Scottish Act	Section 8 and schedule 7, paragraphs 20 to 22 – Anatomy Act	Paragraphs 20 to 22 of schedule 7 expired on 30 March 2021.[9]
First Scottish Act	Section 8 and schedule 7, paragraphs 23 to 30 – Scrutiny of subordinate legislation in urgent cases	As part of the Extension and Expiry Act, paragraphs 23 to 30 of schedule 7 expired at the end of 30 September 2021.
First Scottish Act	Section 8 and schedule 7, paragraph 31 – Business Improvement Districts	Paragraph 31 of schedule 7 expired on 30 June 2021.[10]
First Scottish Act	Section 8 and schedule 7, paragraphs 32 and 33 – Muirburn	Paragraphs 32 and 33 of schedule 7 expired on 30 March 2021.[11]
Second Scottish Act	Section 2 and schedule 1, Part 1 – Student residential tenancy: termination by tenant	Part 1 of schedule 1 was partially expired to remove the provisions on 7 day notice periods for termination of student residential tenancies. Specifically, sub-paragraphs (2)(b)(i), (3) and (4), and words in sub-paragraph (2)(b)(ii), of paragraph 3, schedule 1 expired at the end of 30 September 2021 as part of the Extension and Expiry Act. Words in sub-paragraph (3) of paragraph 1, schedule 1 were repealed at the end of 30 September 2021 as part of the Extension and Expiry Act.
Second Scottish Act	Section 2 and schedule 1, Part 3 – Coronavirus Carer’s Allowance Supplement	As part of the Extension and Expiry Act, part 3 of schedule 1 expired at the end of 30 September 2021.
Second Scottish Act	Section 2 and schedule 1, Part 5 – Bankruptcy	Paragraphs 9, 11, 13 and 14 of schedule 1 were expired on 29 March 2021.[12]
Second Scottish Act	Section 2 and schedule 1, Part 10 – Marriage and civil partnership	As part of the Extension and Expiry Act, part 10 of schedule 1 expired at the end of 30 September 2021.
Second Scottish Act	Section 3 and schedule 2, Part 1 – Criminal Justice	Paragraph 7 of schedule 2 was expired on 30 March 2021.[13]
Second Scottish Act	Section 4 and schedule 3 – Reports, Accounts and Other Documents	Schedule 3 expired on 29 September 2020.[14]
Second Scottish Act	Section 5 and schedule 4, Part 1 – UEFA European Championship	Part 1 of schedule 4 expired on 29 September 2020.[15]
Second Scottish Act	Section 5 and schedule 4, Part 5 – Land and Buildings Transaction Tax: additional amount	Part 5 of schedule 4 expired on 29 September 2020.[16]
Second Scottish Act	Section 5 and schedule 4, Part 6 – Non-Domestic Rates relief	Part 6 of schedule 4 expired on 29 September 2020.[17]
Second Scottish Act	Section 5 and schedule 4, Part 8 – Freedom of Information	Paragraphs 10 and 11 of schedule 4 were repealed by the Extension and Expiry Act.
Second Scottish Act	Section 5 and schedule 4, Part 9 – Low emission zones	Part 9 of schedule 4 expired on 30 March 2021.[18]
Second Scottish Act	Section 5 and schedule 4, Part 11 – Traffic Regulation	Part 11 of schedule 4 expired on 30 March 2021.[19]
UK Act	Section 23 – Time limits in relation to urgent warrants etc under Investigatory Powers Act	Section 23 expired on 9 December 2021.[20]
UK Act	Sections 25 to 29 and schedule 15 – Food supply	Sections 25 to 29 and schedule 15 expired on 17 July 2021.[21]
UK Act	Section 52 and schedule 22 – Powers to issue directions relating to events, gatherings and premises	Section 52 and schedule 22 expired on 12 December 2021.[22]
UK Act	Sections 69 and 70 – Postponement of elections: Scotland	Sections 69 and 70 were spent as of 6 May 2021 (date of the Scottish Parliament election). They remain in force but can no longer be used / no longer have effect.

CORONAVIRUS ACTS SCOTTISH Provisions expired / Likely to expire / proposed for expiry

By virtue of being subject to the sunset clause (section 89) of the UK Act and not being proposed for extension by the Coronavirus Act 2020 (Alteration of Expiry Date) (Scotland) Regulations 2022

Act	Provision	Details
UK Act	Section 2 and schedule 1 – Emergency registration of nurses and other health and care professionals	Likely to expire on 24 March 2022.
UK Act	Section 4 and schedule 3 – Emergency arrangements concerning medical practitioners: Scotland	Likely to expire on 24 March 2022.
UK Act	Section 7 and schedule 6 – Temporary registration of social workers: Scotland	Likely to expire on 24 March 2022. Ministers will revoke the Direction in place as of 24 March 2022
UK Act	Section 10 and schedule 9 – Mental health: Scotland	Likely to expire on 24 March 2022.
UK Act	Section 16 – Duty of local authority to assess needs: Scotland	Likely to expire on 24 March 2022.
UK Act	Section 20 and schedule 14 – Review of medical certificates of cause of death and cremations: Scotland	Likely to expire on 24 March 2022.
UK Act	Section 22 – Appointment of temporary Judicial Commissioners	Likely to expire on 24 March 2022.
UK Act	Sections 34 and 35 – Disclosure: Scotland	Likely to expire on 24 March 2022.
UK Act	Section 37 and schedule 16, Part 2, paragraphs 8 and 9 – Closure of schools etc and further and higher education institutions and Effect of educational closure direction on other provisions	Paragraphs 8 and 9 likely to expire on 24 March 2022.
UK Act	Section 46 – NHS pension schemes: suspension of restrictions on return to work: Scotland	Likely to expire on 24 March 2022. We are working with the UK Government to seek to extend this provision separately via an amendment to the NHS Pension Scheme Regulations.
UK Act	Section 51 and schedule 21, Part 3 – Powers relating to potentially infectious persons in Scotland	Likely to expire on 24 March 2022.
UK Act	Section 58 and schedule 28 – Transportation, storage and disposal of dead bodies etc	Likely to expire on 24 March 2022.
UK Act	Section 75 – Financial assistance for industry	Likely to expire on 24 March 2022.