Introduction
1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (“
2.These Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.
The Act: Overview
3.To help manage the coronavirus pandemic, the Scottish Parliament passed the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No.2) Act 2020. The Coronavirus (Extension and Expiry) (Scotland) Act 2021 amended these Acts to extend much of their operation initially until 31 March 2022, with the potential for further extension by secondary legislation to September 2022 (which was confirmed with the approval of the Parliament). The Extension and Expiry Act also expired certain provisions within the Scottish Acts which were no longer necessary or appropriate.
4.The Scottish Government’s Programme for Government 2021 committed to consulting on what further legislation would be needed to support recovery from the pandemic and to bring forward a Coronavirus Recovery Bill in the first year of Parliament to deliver on aspects of that. This Act delivers on that commitment: its overall policy intention is to embed reforms in Scotland’s public services and justice system that, though necessitated by the pandemic, have delivered improvements to service users and efficiencies, and to help build resilience against future public health threats. This Act will also continue certain temporary provisions on a longer extension basis as a response to the impact of coronavirus on Scotland’s justice system.
5.As well as the Scottish Coronavirus Acts mentioned above, this Act also makes permanent provision based on certain temporary measures within the UK Coronavirus Act 2020. The UK Act was due to expire on 25 March 2022, although there is a Ministerial power (in section 90 of that Act) to make regulations to extend the effect of particular provisions for up to 6 months and this was exercised with the approval of the Parliament to extend relevant provisions to 24 September 2022.
Part 1: Public Health Protection
Chapter 1: Modifications of the Public Health etc. (Scotland) Act 2008
Section 1: Public health protection measures
6.Chapter 1 of Part 1 of the Act provides the Scottish Ministers with a regulation-making power for the purpose of protecting public health in Scotland and a regulation-making power to confer functions about monitoring health risks on local authorities, health boards and other persons.
7.Schedule 19 of the Coronavirus Act 2020 conferred a temporary power on the Scottish Ministers to make similar provision by regulations in respect of coronavirus alone. Part 1 of this Act would give the Scottish Ministers the power to provide for a national public health response to any infectious disease or biological or chemical contamination.
8.New section 86A(1) of the Public Health etc. (Scotland) Act 2008 (“
9.Subsection (3) of section 86A allows this power to be used in relation to infectious disease or contamination in general, or in response to a specific public health threat; moreover, regulations under the power may make provision of a general nature, make provision contingent on particular circumstances occurring, or make specific provision in response to particular circumstances.
10.Subsection (4) of section 86A gives general examples of provision which might be made by the power in subsection (1), including restrictions or requirements in relation to persons, things or premises in the event of, or in response to, a threat to public health. These restrictions or requirements may be imposed directly in the regulations on the face of the regulations or indirectly and sections 86D and 86E make further provision about that. Subsection (5) gives specific examples of the restrictions or requirements mentioned in subsection (4): a requirement to keep a pupil away from school; a restriction on the holding of an event; or a restriction or requirement relating to the handling, transport, burial or cremation of dead bodies, or the handling, transport or disposal of human remains. This type of measure also includes “special requirements”, which are defined in new section 86G.
11.The power to make regulations under section 86A cannot be used to respond to a particular infection or contamination unless a public health declaration under section 86B is in force. This restriction does not apply to regulations that are establishing standing preparedness arrangements.
12.A public health declaration is a declaration that the Scottish Ministers think that an infectious disease or contaminant poses a danger to human health and that the using of the power to make regulations under section 86A may be a way of protecting against that danger. Before making a public health declaration, the Scottish Ministers must consult the Chief Medical Officer of the Scottish Administration (“
13.A public health declaration can come into force in two ways. The usual way is set out in section 86B(2) to (8). After making a declaration, the Scottish Ministers will lay the declaration before the Scottish Parliament. A member of the Scottish Government will then lodge a motion that the declaration be approved and, if it is approved, the declaration can come into force and regulations under section 86A can be made. The Scottish Ministers must publish the declaration and also a notice of the approval of the declaration and when it comes into force.
14.If, while a public health declaration is in force, the Scottish Ministers decide that the tests for making a declaration no longer apply, they must revoke the declaration, tell the Parliament and publish a notice that the declaration has been revoked. The declaration stops applying as soon as it is revoked.
15.The other way a public health declaration can come into force is if the Scottish Ministers think that it is not practicable to get prior Parliamentary approval for a declaration before it comes into force (for example, because the Parliament has been dissolved for an election), the Scottish Ministers may instead follow the process set out in section 86C.
16.Under section 86C, the public health declaration comes into force as soon as it is made by the Scottish Ministers. The Scottish Ministers must lay the declaration before the Parliament and a member of the Scottish Government will lodge a motion that the declaration be approved. If the declaration is not approved by the end of the period of 28 days after the day it is made, it stops applying. It may stop applying earlier if the Parliament comes to an earlier decision not to approve the declaration.
17.New sections 86D to 86F restrict how the power to make public health protection regulations in section 86A(1) can be used.
18.New section 86D makes provision about where the regulations impose restrictions or requirements directly on the face of the regulations. In such cases the regulations may not make provision by virtue of section 86A(4) – that is, provision directly or indirectly imposing restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health – unless the Scottish Ministers consider that the restriction or requirement of this kind is proportionate to what is sought to be achieved by imposing it.
19.Furthermore, where regulations impose restrictions or requirements directly on the face of the regulations, they cannot impose a restriction or requirement mentioned in section 86G(2)(a), (b), (c) or (d) at all: that is that a person submit to medical examination, be removed to a hospital or other suitable establishment, be detained in a hospital or other suitable establishment, or be kept in quarantine.
20.New section 86E makes provision about where the regulations impose restrictions or requirements indirectly via a decision-maker (such as a health board or local authority, or the Scottish Ministers themselves). In such cases the regulations may not make provision by virtue of section 86A(4) unless the regulations provide that a decision to impose a restriction or requirement of this kind may only be taken if the decision-maker considers that the restriction or requirement is proportionate to what is sought to be achieved by imposing it.
21.In addition, where regulations impose restrictions or requirements indirectly, section 86E(2) prohibits them from enabling the imposition of a special restriction or requirement (as defined in new section 86G) unless certain conditions are met. Those conditions are that there is a serious and imminent threat to public health when the regulations themselves are made, or that the decision to impose the restrictions or requirements is expressed in the regulations to be contingent on there being such a threat at the time at which that decision is made.
22.New section 86F provides that the regulations (whether making direct or indirect provision) cannot be used to make a person undergo medical treatment, including vaccination.
23.New section 86G defines “
24.New section 86H makes further provision about the regulations, providing (among other things) that the regulations can create offences and other means of enforcement of any restrictions or requirements imposed by virtue of the regulations; can provide for appeals and reviews of decisions taken by virtue of the regulations; and can modify primary legislation. Subsection (3) sets out the maximum penalties which can be imposed if offences are created. Subsection (4) requires that the regulations provide for a right of appeal to the sheriff against any decision taken under the regulations by virtue of which a special restriction or requirement is imposed in relation to a person, thing or premises.
25.New section 86I makes provision about the review of public health protection regulations made under section 86A(1). In general, where the regulations make provision mentioned in section 86A(4) – that is, provision directly or indirectly imposing restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health – the Scottish Ministers must review the regulations every 3 weeks. This duty to review regulations every 3 weeks does not apply to regulations which are only making general provision or provision which is contingent. This would include standing preparedness arrangements as mentioned in paragraph 11 above.
26.Where regulations under section 86A(1) enable a special restriction or requirement to be imposed indirectly, i.e. by virtue of a decision taken under the regulations, the regulations must provide for the review of that restriction or requirement at specified intervals by a person named in the regulations. Furthermore, where regulations under section 86A(1) enable the imposition of detention or quarantine, the specified intervals for review must be 3 weeks or less, and the regulations must require the detention or quarantine to be reviewed without an application having to be made to the decision-maker who imposed it.
27.New section 86J gives power to the Scottish Ministers to make regulations in order to confer functions on local authorities, health boards or other persons in relation to the monitoring of public health risks. Regulations under this section will be subject to the negative procedure by virtue of section 122(4) of the 2008 Act.
28.The effect of subsection (3) of section 1 is that public health regulations under section 86A(1) will be subject to the affirmative procedure (the standard affirmative procedure, set out in section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010, is sometimes known as the draft affirmative procedure). However this does not apply if the Scottish Ministers consider that the regulations need to be made urgently: in such cases they can come into effect immediately, but will cease to have effect after 28 days of being made unless they have been approved by a resolution of the Scottish Parliament before the expiry of that period. This is known as the made-affirmative procedure.
29.Subsection (3) of section 1 inserts 3 new subsections into section 122 of the 2008 Act. New subsection (11) means that if regulations under section 86A(1) make provision modifying an Act of the Scottish Parliament or an Act of Parliament, the regulations cannot be made using the made-affirmative procedure set out in paragraph 28. Instead, such regulations will be subject to the affirmative procedure.
30.New subsection (12) means that where regulations are made using the made-affirmative procedure set out in paragraph 28 the Scottish Ministers must explain why the regulations need to be made urgently and the regulations have to include a date for them to expire - a “sunset” provision. Under subsection (13), regulations do not have to include a “sunset” provision if they are amending existing regulations which already contain one.
Section 2: International travel regulations
31.This section amends section 94 of the 2008 Act, a provision which allows the Scottish Ministers to make regulations to give effect to the International Health Regulations 2005, as well as other international agreements relating to the spread of infectious disease and contamination, so far as they have effect in or as regards Scotland.
32.Subsection (2)(a) expands the scope of the regulation-making power in section 94 to include giving effect to arrangements and recommendations made under international agreements, as well as the agreements themselves. International legal texts (including the International Health Regulations - see for example Article 14 of those Regulations) reference agreements or arrangements. This amendment puts beyond doubt that Scottish Ministers are able to implement both the former and the latter.
33.Subsection (2)(b) inserts further material on what regulations under section 94 may contain, including provision enabling a court to order a person convicted of any offence under the regulations to take or pay for remedial action, provision for the enforcement of restrictions and requirements imposed by virtue of the regulations, and provision for appeals from and reviews of decisions taken by virtue of the regulations.
34.Subsection (2)(c) adds a new restriction on international regulations under section 94: the effect is that they cannot be used to make a person undergo medical treatment (including vaccination). This is the same for public health protection regulations under new section 86A of the 2008 Act, as per new section 86F, both inserted by section 1 of this Act.
Section 3: Meaning of “premises”
35.This section extends the definition of “premises” set out in section 123 of the 2008 Act to include tents and also offshore installations.
Chapter 2: Arrangements for vaccination and immunisation
Section 4: Arrangements for vaccination and immunisation
36.This section allows health boards to design vaccination programmes with vaccines delivered by a wide range of staff, including junior staff under supervision from more senior staff (who may not necessarily be doctors) and by other experienced vaccinators who are not themselves medical practitioners. This gives permanent effect to the modifications to the National Health Service (Scotland) Act 1978 provided for on a temporary basis by section 36 of the Coronavirus Act 2020.
Part 2: Education
Chapter 1: Educational establishments etc.
37.Chapter 1 of Part 2 of this Act enables the Scottish Ministers to make regulations to ensure the continuity of educational provision in a manner which is consistent with the protection of public health. It also requires educational establishments to have regard to public health advice and guidance. Similar provision was made in respect of coronavirus alone by schedules 16 and 17 of the Coronavirus Act 2020.
Section 5: Interpretation of Chapter
38.This section defines the key terms used in Chapter 1 of Part 2 of this Act, including “educational establishment”, “protecting public health”, and the meaning of “
Section 6: Duty to have regard to public health advice
39.This section requires relevant operators of educational establishments (including early learning and childcare settings, schools, colleges, and further and higher education institutions), as well as relevant managers of school boarding accommodation and student accommodation, to have regard to guidance on protecting public health from the CMO.
40.In this Chapter of this Act, as set out in section 5, “
Section 7: Guidance on public health measures
41.This section gives a power for the Scottish Ministers to issue statutory guidance to the relevant operators of educational establishments, as well as managers of school boarding accommodation and student accommodation, on protecting public health and ensuring the continuity of education, which those operators and managers must have regard to. Subsection (2) requires Ministers to publish any guidance issued under this section.
Section 8: Regulations on continuing operation of educational establishments
42.This section confers a power on the Scottish Ministers to make regulations applying to educational establishments on their continued operation during the subsistence of threats to public health in Scotland. This follows the use of a direction-making power with a similar scope under schedule 17 of the Coronavirus Act 2020, which was used during the coronavirus pandemic in 2020 and 2021 to secure the continuing provision of education.
43.Subsection (3) places a limit on the scope of regulations under this section: where they apply to further education institutions or higher education institutions, the regulations may not relate to the non-educational functions of the institution, as defined in subsection (4): for instance, functions relating solely to research and not to teaching are excluded.
44.Subsection (5) sets out the preconditions for making regulations under this section: Ministers must have regard to any advice from the CMO about protecting public health, and, in that context, must also be satisfied that making the regulations is a necessary and proportionate action for or in connection with the continued provision of education.
45.Subsection (6) states that regulations under this section may provide that any failure of compliance by an educational establishment with statutory or common law rules relating to education is to be disregarded where it is attributable to the regulations: the effect of this is that, where regulations under this section contain such provision, they effectively override other legal requirements on educational establishments while in force to the extent required by the regulations.
46.Subsection (7) sets out the substantive content of what regulations under this section may provide for, including: the conferral of additional functions on an educational establishment relating to the provision of education or (only where an education authority or a further or higher education institution is concerned) the use of an educational establishment’s premises for the purpose of protecting public health, for example for testing or vaccination; the alteration of term dates and of opening times; the direction of service provision; the restriction or prohibition of access to an educational establishment’s premises (or part of such premises). The restriction or prohibition of access may be framed in terms of specified activities. Furthermore, the regulations may require actions to be taken by educational establishments in general terms, or may require particular actions to be taken.
Section 9: Regulations on school boarding accommodation
47.This section confers a power on the Scottish Ministers to make regulations applying to boarding schools during the subsistence of threats to public health in Scotland.
48.Regulations under this section may require the restriction or prohibition of access to boarding accommodation premises (or part of such premises). The restriction or prohibition of access may be framed in terms of specified activities (for example, access could be permitted only for urgent pupil welfare reasons or the carrying on of activities which are necessary for the continuing provision of education). Furthermore, the regulations may require actions to be taken by school boarding establishments in general terms, or may require particular actions to be taken.
49.Regulations under this section may also, alternatively or additionally to making provision on the restriction of access, require the managers of school boarding establishments to provide support for pupils in order to assist them to comply with any legal requirement relating to public health: an example would be a requirement to quarantine under Part 4 of the Public Health etc. (Scotland) Act 2008. Support may also be required for pupils to assist them to follow public health guidance or advice from a public authority, for instance from the CMO; or to assist them to respond to specific requests or recommendations relating to public health from a public authority, for instance a recommendation from a health board for an individual pupil or group of pupils to self-isolate. The detail of what support should be provided will be set out in guidance.
50.Subsection (3) of this section sets out the preconditions for making regulations under this section: Ministers must have regard to any advice from the CMO about protecting public health, and in that context, must also be satisfied that making the regulations is a necessary and proportionate action to protect public health.
51.Subsection (4) states that regulations under this section may provide that any failure of compliance by a school with statutory or common law rules relating to education is to be disregarded where it is attributable to the regulations: the effect of this is that, where regulations under this section contain such provision, they effectively override other legal requirements while in force to the extent required by the regulations.
Section 10: Regulations on student accommodation
52.This section confers a power on the Scottish Ministers to make regulations applying to the managers of student accommodation during the subsistence of threats to public health in Scotland.
53.Regulations under this section may require the restriction or prohibition of access to student accommodation premises (or part of such premises). The restriction or prohibition of access may be framed in terms of specified activities (for example, access could be permitted only for urgent student welfare reasons or for the carrying on of activities which are necessary for the continuing provision of education). Furthermore, the regulations may require actions to be taken by the managers of student accommodation in general terms, or may require particular actions to be taken by them.
54.Regulations under this section may also, alternatively or additionally to making provision on the restriction of access, require the managers of student accommodation to provide support for students in order to assist them to comply with any legal requirement relating to public health: an example would be a requirement to quarantine under Part 4 of the Public Health etc. (Scotland) Act 2008. Support may also be required for students to assist them to follow public health guidance or advice from a public authority, for instance from the CMO; or to assist them to respond to specific requests or recommendations relating to public health from a public authority, for instance a recommendation from a health board for a student or group of students to self-isolate. The detail of what support should be provided will be set out in guidance.
55.Subsection (3) of this section sets out the preconditions for making regulations under this section: Ministers must have regard to any advice from the CMO about protecting public health, and, in that context, must also be satisfied that making the regulations is a necessary and proportionate action for or in connection with protecting public health.
56.Subsection (4) states that regulations under this section may provide that any failure of compliance by the managers of student accommodation with statutory or common law rules relating to education is to be disregarded where it is attributable to the regulations: the effect of this is that, where regulations under this section contain such provision, they effectively override other legal requirements while in force to the extent required by the regulations.
Section 11: Compliance and enforcement
57.This section concerns the enforcement of regulations that are made by the Scottish Ministers using any of the powers in this Chapter of this Act. Subsection (1) provides that the regulations may make provision for the carrying out and enforcement of restrictions and requirements contained in them.
58.Subsection (2) provides that relevant authorities must have regard to any guidance issued by Ministers about how to comply with the regulations. Subsection (3) requires Ministers to publish this guidance.
Section 12: Procedure for regulations
59.This section provides that regulations made by the Scottish Ministers under section 8, 9 or 10 are subject to the affirmative procedure. However, where the Scottish Ministers make a declaration that the regulations need to be made urgently, the made-affirmative procedure will apply: this means that the regulations can come into effect immediately, but will cease to have effect after 28 days of being made unless they have been approved by a resolution of the Scottish Parliament before the end of that period. In such cases, Ministers must explain why they are of the opinion that urgency requires the regulations to be made without their being subject to the affirmative procedure; and the regulations must include an expiry date – a “sunset” provision (unless they amend previous regulations which already contain a “sunset” provision).
60.In addition, subsection (9) of this section provides that where regulations merely revoke previous regulations made under section 8, 9 or 10 – or merely revoke such regulations and make related transitional, transitory or saving provision – then the regulations are not subject to the affirmative procedure but must be laid before the Scottish Parliament as soon as practicable after being made (sometimes known as the laid only procedure).
Section 13: Regulations: public health declarations
61.The powers to make regulations under this Chapter of this Act cannot be used to respond to a particular infection or contamination unless a public health declaration under section 13 is in force. A public health declaration is a declaration that the Scottish Ministers think that an infectious disease or contaminant poses a danger to human health and that the using of the power to make regulations under this Chapter may be a way of protecting against that danger. Before making a public health declaration, the Scottish Ministers must consult the CMO or another person that Ministers designate to give advice. For example, if the danger is caused by a contamination rather than an infectious disease, advice from the Chief Scientific Adviser may be more relevant.
62.A public health declaration can come into force in two ways. The normal way is set out in section 13(2) to (8). After making a declaration, the Scottish Ministers will lay the declaration before the Scottish Parliament. A member of the Scottish Government will then lodge a motion that the declaration be approved and, if it is approved, the declaration can come into force and regulations under section 86A can be made. The Scottish Ministers must publish the declaration and also a notice of the approval of the declaration and when it comes into force.
63.If, while a public health declaration is in force, the Scottish Ministers decide that the tests for making a declaration no longer apply, they must revoke the declaration, tell the Parliament and publish a notice that the declaration has been revoked. The declaration stops applying as soon as it is revoked.
Section 14: Regulations: further provision about public health declarations
64.This section makes further provision about public health declarations. If the Scottish Ministers think that it is not practicable to get prior Parliamentary approval for a declaration before it comes into force (for example, because the Parliament has been dissolved for an election), the Scottish Ministers may instead follow the process set out in this section.
65.Under this section, the public health declaration comes into force as soon as it is made by the Scottish Ministers. The Scottish Ministers must lay the declaration before the Parliament and a member of the Scottish Government will lodge a motion that the declaration be approved. If the declaration is not approved by the end of the period of 28 days after the day it is made, it stops applying. It may stop applying earlier if the Parliament comes to an earlier decision not to approve the declaration.
Section 15: Review of regulations
66.This section places a duty on Ministers to review any regulations made under section 8, 9 or 10 every 21 days.
Section 16: Duty to seek views about regulations
67.This section places a duty on the Scottish Ministers to seek views about any educational continuity regulations made under section 8 – and about any regulations made under sections 9 or 10 that are in force at the same time – at least every 28 days while the section 8 regulations are in force.
68.Subsection (2) lists the persons whom Ministers must seek views from: representatives of educational establishments, users of those establishments – including representatives of children and young people – along with staff and any other stakeholders that are considered appropriate.
Section 17: Report on public schools’ readiness for remote learning
69.This section places a duty on the Scottish Ministers to report on education authorities’ readiness for the provision of remote learning in public schools, including on specific actions that education authorities (as the managers of public schools) and Ministers themselves have taken to improve readiness for remote learning. Early learning and childcare provision is not included for the purposes of this section.
70.The first report under this section must be published as soon as practicable after 31 July 2023. Subsequent reports may be published as and when Ministers consider appropriate.
Chapter 2: School consultations
71.Chapter 2 of Part 2 of this Act amends the Schools (Consultation) (Scotland) Act 2010 (“
Section 18: School consultations: meetings and documents
72.This section inserts a new section 11ZA into the 2010 Act that provides that an education authority may make an application to the Scottish Ministers for a direction to do certain things in law, as listed in subsection (2):
to disregard, that is to excuse their non-compliance in law with, the duties in section 4 and 9 of the 2010 Act to publish proposal papers and consultation reports on proposed changes to education provision in printed form;
to treat the duties in those sections to make proposal papers and consultation reports available for public inspection as duties to make the documents available in a manner they consider appropriate instead;
to meet the duty under section 7 of the 2010 Act to hold a public meeting on proposed changes to education provision by holding the meeting using remote facilities (including by telephone or by video conferencing software).
73.Subsection (3) sets out the precondition for the Scottish Ministers giving a direction of this nature: Ministers must be satisfied that doing so is a necessary and proportionate action for or in connection with the protection of public health. The term “
74.Subsection (4) provides that a direction given under this section by the Scottish Ministers may vary or revoke an earlier direction.
75.Subsection (5) makes further provision about directions under this section, including that they may be varied or revoked, may relate to more than one proposal, and may be subject to conditions set out in the direction.
76.Subsection (6) requires Ministers to publish any direction given under this section.
Part 3: Public Service Reform
Bankruptcy
77.This Part of this Act makes a series of amendments to the Bankruptcy (Scotland) Act 2016 (“
Section 19: Bankruptcy: service of documents
78.This section inserts a new section 224A into the 2016 Act, which applies whenever the 2016 Act, or regulations made under it, authorises or requires a document to be served on a person, whatever particular wording is used to describe this. The new section 224A(1) allows service of a document by personal delivery, by post or by electronic transmission.
79.Section 224A(2) and (3) set out the practicalities of serving a document under the 2016 Act by post, including when receipt is deemed to have taken place.
80.Section 224A(4) provides further detail in relation to documents served by electronic means. Electronic transmission of a document must be effected in a manner that the recipient has indicated to the sender that they are willing to receive the document electronically. Subsection (4)(b) makes provision as to the circumstances in which willingness to receive a document electronically may be given or inferred. Subsection (4)(c) provides that uploading a document to an electronic storage system from where it may be downloaded by the recipient may constitute electronic transmission, where the recipient is sent a notification that the document has been uploaded in that way. Finally, subsection (4)(d) provides that a document transmitted electronically is to be taken to have been received on the day on which transmission took place: however this is only a presumption which can be displaced if there is evidence to the contrary.
81.The effect of subsection (5) is that different provision may be made regarding the service of documents by rules of court, or by an order of court depending on the circumstances of an individual case, and the rest of section 224A will not apply.
82.Subsection (3) of section 15 repeals section 187 of the 2016 Act, which previously only applied to Part 14 of the 2016 Act on administration, accounting and discharge, as the new section 224A is to apply across the whole of the 2016 Act’s provisions.
83.Subsection (4) of section 15 makes transitional provision to ensure that the new law represented in section 224A only applies to documents served on or after the commencement date of 1 October 2022 (see section 59 for commencement arrangements).
Section 20: Bankruptcy: meaning of “qualified creditor” and “qualified creditors”
84.This section amends the definitions of “qualified creditor” and “qualified creditors” in section 7(1) of the 2016 Act by raising the amount of money a creditor or a group of creditors must be owed in order to be “qualified” from £3,000 to £5,000. A qualified creditor has the right to petition the court for a debtor’s bankruptcy in terms of section 2(1)(b)(i) of the 2016 Act, where the debtor is apparently insolvent. The new definition will apply in relation to any sequestration in respect of which the petition was presented on or after the commencement date of 1 October 2022 (see section 59 for commencement arrangements).
Section 21: Bankruptcy: remote meetings of creditors
85.This section amends schedule 6 of the 2016 Act to allow meetings of creditors to take place using electronic means, as well as in person.
Diligence
Section 22: Bank arrestments: protected minimum balance
86.This section of this Act relates to the sum that is protected in an individual’s bank account when a bank arrestment is executed under the law on diligence for a debt owed. This is known as the protected minimum balance and previously, under the Debtors (Scotland) Act 1987, had been linked to the monthly threshold for earnings arrestment, which is a different type of diligence.
87.Section 73F of the Debtors (Scotland) Act 1987 is amended to de-couple the arrangements for fixing the protected minimum balance from the provisions that set the minimum monthly salary limits for earning arrestments. The protected minimum balance for bank arrestments is raised to £1,000, and a power is provided for the Scottish Ministers to amend the protected minimum balance in the future through negative procedure regulations. However, the new law has no effect in relation to an arrestment executed before the commencement date of 1 November 2022 (see section 59 for commencement arrangements).
Section 23: Period of moratorium on diligence
88.This section increases the length of the moratorium against diligence created by sections 195 to 198 of the Bankruptcy (Scotland) Act 2016, from a period of 6 weeks to 6 months. Subsection (3) makes a consequential change to the arrangements for those in a moratorium who then enter a protected trust deed, allowing the moratorium to remain in place beyond 6 months for a further 7 weeks, in order to allow sufficient time for the registration of protected status
Section 24: Power to amend period of moratorium on diligence
89.This section adds to the amendment of section 198 of the Bankruptcy (Scotland) Act 2016 effected by section 23 by providing the Scottish Ministers with a power to amend the period of the moratorium against diligence through affirmative procedure regulations.
Registration of births
Section 25: Giving information of particulars of birth remotely
90.This section amends the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (“
91.Prior to the amendment coming into force, registering a birth normally required that a parent of the child, or another person in certain circumstances, provide the district registrar with details of the birth in person. The registration form then had to be signed in the registrar’s physical presence.
92.Section 25 amends section 14(1A) of the Registration Act to enable district registrars to set out alternative ways of providing them with details of a birth. District registrars will only be able to offer alternatives that have been approved by the Registrar General for Scotland (see new section 14A(1), inserted by section 25(3) of this Act).
93.Section 25 further amends section 14(1A) of the Registration Act so that alternative ways of providing details of a birth can be set at a national level by the Registrar General for Scotland.
94.The amendments to section 14 provide that where the informant can provide information remotely or attest a birth registration form remotely, the choice of whether to do so is for the informant.
95.New section 14A requires that any directions setting out alternatives to physically attending a registration office to provide details of a birth be put in the public domain. It ensures that directions can be changed or withdrawn. And it makes clear that although district registrars, and the Registrar General, have the option of allowing details of births to be provided otherwise than by physically attending a registration office, they are not required to do so.
96.Section 25 also allows for the registration form to be attested without requiring that the person attesting it do so physically. As mentioned, attestation of the form currently entails physically signing it in the registration office. New subsection (1C) of section 14 of the Registration Act (inserted by section 25(2)(c) of this Act) provides two options for attesting a registration form:
the form might be attested by the person providing the details of the birth through a process that the Registrar General has approved, or
an official might attest the form on the person’s behalf (for example by transposing the person’s signature onto an electronic version of the form), which must also be done in a way approved by the Registrar General.
97.Section 25 makes similar adjustments to sections 16, 18 and 18B of the Registration Act. Section 16 deals with the completion of a birth registration form in a case where nobody has done so within the period required by section 14. Amendments to section 16 provide that where the informant can provide information remotely or attest a birth registration form remotely, the choice of whether to do so is for the informant.
98.Section 18 of the Registration Act deals with the joint registration of a child’s birth by the child’s mother and father in cases where they are not married to, or in a civil partnership with, one another. Section 18B deals with the joint registration of a child’s birth by the child’s mother and another woman in cases where they are not married to, or in a civil partnership with, one another. The amendments made by section 25 of this Act allow those registration processes to be carried out remotely too and allow a birth registration form to be attested on a person’s behalf (whether or not the particulars of birth are given remotely). Amendments to section 18 provide that where the informant can attest a birth registration form remotely, the choice of whether to do so is for the informant.
99.The adjustments made to section 16B(2) of the Registration Act by section 25 of this Act, and the insertion of new section 21A, are consequential on those already discussed. Section 16B(2) prevents the registration of a birth from being completed, where the birth registration form has been completed remotely, until a public authority (such as a health board) has confirmed the details of the birth. Section 25 of this Act amends section 16B so that it refers to the processes for completion of birth certificates enabled by the amendments discussed above. The new section 21A of the Registration Act defines “birth registration form”, following the repeal of the original definition as part of the modifications made to section 14.
Registration of deaths
Section 26: Funeral director giving information of particulars of death
100.This section amends the Registration Act so that a funeral director can provide details of a death for registration purposes on behalf of a person who would otherwise have a legal duty to provide them under section 23(1) of the Registration Act. The effect of the amendment is that anyone subject to that duty is absolved from having to comply with it once the funeral director has given a district registrar the required information.
101.This section’s amendment to section 23(1A) of the Registration Act means that a funeral director is to give information about a death in the same way as a person subject to the duty to do so under section 23(1).
Section 27: Giving information of particulars of death remotely
102.This section amends the Registration Act to enable the process for registering a death to be carried out remotely, and also to facilitate registers being kept electronically.
103.Prior to the modifications made by the Act taking effect, registering a death normally required that a person (commonly a relative of the deceased) provide the district registrar with details of the death in person. The registration form then had to be signed in the registrar’s physical presence.
104.Section 27 amends section 23(1A) of the Registration Act to enable district registrars to set out alternative ways of providing them with details of a death. District registrars will only be able to offer alternatives that have been approved by the Registrar General for Scotland (see new section 23A(1), inserted by section 27(3) of this Act).
105.Section 27 further amends section 23(1A) of the Registration Act so that alternative ways of providing details of a death can be set at a national level by the Registrar General for Scotland. Amendments to section 23 provide that where the informant can provide information remotely or attest a death registration form remotely, the choice of whether to do so is for the informant.
106.New section 23A requires that any directions setting out alternatives to physically attending a registration office to provide details of a death be put in the public domain. It ensures that directions can be changed or withdrawn. And it makes clear that although district registrars, and the Registrar General, have the option of allowing details of a death to be provided otherwise than by physically attending a registration office, they are not required to do so.
107.Section 27 also allows for the registration form to be attested without requiring that the person attesting it do so physically. As mentioned, attestation of the form currently entails physically signing it in the registration office. New subsection (1C) of section 23 of the Registration Act (inserted by section 27(2)(b) of this Act) provides two options for attesting a registration form:
the form might be attested by the person providing the details of the death through a process that the Registrar General has approved, or
an official might attest the form on the person’s behalf (for example by transposing the person’s signature onto an electronic version of the form), which must also be done in a way approved by the Registrar General.
108.Section 27(3A) makes similar adjustments to section 25 of the Registration Act. Section 25 deals with the completion of a death registration form in a case where nobody has done so within the period required by section 23. Amendments to section 25 provide that where the informant can provide information remotely or attest a death registration form remotely, the choice of whether to do so is for the informant.
109.The adjustments made to section 25B(2) of the Registration Act by section 27 of this Act, and the insertion of new section 28A, are consequential on those already discussed. Section 25B(2) prevents the registration of a death from being completed, where the death registration form has been completed remotely, until a public authority (such as a health board) has confirmed the details of the death. Section 27 of this Act amends section 25B so that it refers to the processes for completion of death certificates enabled by the amendments discussed above. The new section 28A of the Registration Act defines “death registration form”, following the repeal of the original definition as part of the modifications made to section 23.
Further modifications of the Registration of Births, Deaths and Marriages Act
Section 28: Regulations under the 1965 Act
110.This section amends the Registration Act to ensure that the powers that Act confers on the Scottish Ministers to make regulations can be exercised to make different provision for different cases or circumstances.
Civil Partnership Register
Section 29: Power to make a register electronic
111.This section amends the Civil Partnership Act 2004 to enable civil partnership registers to take electronic (rather than paper-based) form if the Registrar General for Scotland so determines. This mirrors the position in relation to other registers (including a register of marriages) under section 32(1A) of the Registration Act.
Civic licensing
Section 30: Civic licensing: how hearings may be held
112.This section makes similar provision to civic licensing as is made for alcohol licensing by section 32 of this Act (see paragraphs 117-120 below). A new paragraph 18B is inserted into schedule 1 of the Civic Government (Scotland) Act 1982 (“
113.Sub-paragraph (2) of paragraph 18B ensures that any views which participants at a licensing hearing may offer with regard to the appropriate format for the hearing must be taken into account by a licensing authority, prior to finalising its decision on the format. This applies to anyone who notifies the authority of their intention to participate, such as the licence holder or an objector.
114.Equivalent provision is then made for licensing hearings for sex shops and sexual entertainment venues by the insertion of a new paragraph 24B into schedule 2 of the 1982 Act.
Section 31: Civic licensing: how notices may be published
115.Schedule 1 of the 1982 Act provides that licensing authorities must give public notice of certain applications that are made to them and may give public notice in other cases. This is to be given by publication of a notice in a newspaper or newspapers circulating in the area of the licensing authority (as per paragraph 2(8) of schedule 1). Similarly, schedule 2 of the 1982 Act requires applicants for the grant or renewal of a sex shop licence to give notice of the application by publishing an advert in a newspaper specified by the local authority to supply a copy of the advert to the local authority (as per paragraph 7(1)-(2) of schedule 2). Section 45B of the 1982 Act then applies the same requirements (with certain modifications, including one relating to giving notice electronically, which section 31(2) supersedes) to the licensing of sexual entertainment venues.
116.Schedule 6 of the Coronavirus (Scotland) Act 2020 temporarily modified these notice requirements in the 1982 Act in order to allow notice to be given by publication of a notice on the local authority’s website (in the case of sex shops and sexual entertainment venues) or the licensing authority’s website (in the case of other civic licensing). Section 31 of this Act gives these modifications permanent effect.
Alcohol licensing
Section 32: Alcohol licensing: how hearings may be held
117.This section makes similar provision to alcohol licensing as is made for civic licensing by section 30 of this Act, replicating the temporary modifications to the Licensing (Scotland) Act 2005 (“
118.A new section 133A is inserted into the 2005 Act, giving a Licensing Board the ability to hold a licensing hearing through remote facilities, as well as in person, or through a mixture of both (often called a “hybrid” format). Subsection (3) of section 133A defines “remote facilities” for these purposes, a definition which would include telephones and video conferencing software.
119.Subsection (2) of section 133A ensures that any views which participants at a licensing hearing may offer with regard to the appropriate format for the hearing must be taken into account by a Licensing Board, prior to finalising its decision on the format. This applies to anyone who notifies the Board of their intention to participate, such as the licence holder or an objector.
120.Equivalent provision is then made for Licensing Board meetings by amendments to paragraph 12 of schedule 1 of the 2005 Act. In addition, because the existing paragraph 12(2) requires that Licensing Board meetings are held in public, a new paragraph 12(2A) is inserted in order to clarify that this requirement for public access is complied with, where a remote or hybrid meeting is held, by the Board enabling the public to observe the meeting remotely – for example through the public provision of a web link to the meeting.
Land registration
121.This part of this Act makes a series of changes to the law of land registration, making similar provision to the temporary modifications made by schedule 7 of the Coronavirus (Scotland) Act 2020 and schedule 4 of the Coronavirus (Scotland) (No.2) Act 2020.
Section 33: Electronic submission of copies of deeds and writs to Registers of Scotland
122.This section amends the Land Registration etc. (Scotland) Act 2012 and the Land Registers (Scotland) Act 1868 to make provision for registration in the Land Register and recording in the Register of Sasines to proceed on a copy of a deed submitted to the Keeper of the Registers by electronic means.
123.Subsections (1) and (2) of this section make provision for the Land Register, amending section 21 of the 2012 Act. The new section 21(5) sets out that a copy of a deed submitted electronically is sufficient to allow registration to proceed. Inserted section 21(6) provides that this applies when the means and form for electronic submission of copy deeds are specified as acceptable on the Keeper’s website. Inserted section 21(7) sets out the forms submission by electronic means can take, such as attachment to an email.
124.Subsections (3) and (4) of this section make similar provision for the Register of Sasines, amending the 1868 Act. Subsection (4)(a) removes the existing reference to electronic documents to allow section 6A of the 1868 Act, as amended by subsection (4)(b) of this section, to apply to copies of deeds transmitted electronically. Inserted section 6A(6) sets out that a copy of a deed submitted electronically is sufficient to allow recording in the Register of Sasines to proceed. Inserted section 6A(7) provides that this applies when the means and form for electronic submission of copy deeds are specified as acceptable on the Keeper’s website (www.ros.gov.uk). Inserted section 6A(8) sets out the forms submission by electronic means can take.
Section 34: Register of Inhibitions: electronic signature of documents
125.This section relates to the Register of Inhibitions and makes provision for registration or recording in that register to proceed on the basis of electronic submission of documents and copies of documents to the Keeper of the Registers, inserting a new section 148A into the Bankruptcy and Diligence etc. (Scotland) Act 2007.
126.Section 148A(1) sets out that this provision applies to any document which is required or permitted to be registered with the Keeper in the Register of Inhibitions.
127.Section 148A(2) provides that documents may be signed by way of a basic electronic signature in order to be registered in the Register, including a version of an electronic signature which is reproduced on a paper document.
128.Section 148(3) and (4) provide that any legal requirement that a document be given to the Keeper in order to be registered or recorded in the Register may be fulfilled by transmitting it to the Keeper electronically, so long as the means and form for electronic submission are specified as acceptable on the Keeper’s website (www.ros.gov.uk).
Legal Aid and Advice and Assistance
Section 35: Claim for interim payment of fees and outlays
129.This section makes provision for and about the making of interim payments in cases where legal fees and outlays are due to be paid out of the Legal Aid Fund (“
130.Subsection (2)(a) modifies the existing duty to make payments out of the Fund so as to take account of the introduction of interim payments. Subsection (2)(b) similarly modifies the obligation for certain payments to be paid into the Fund: it requires any sums due by way of reimbursement of interim payments to be paid into the Fund.
131.Subsection (3)(a) modifies the provision that is made in section 33 of the 1986 Act about the ability to set fixed payments for work undertaken. As a general rule, because of the nature of a fixed payment, a solicitor who undertakes work for which a fixed payment is due will not be entitled to other payments from the Fund for that work. However, new subsection (3BA) ensures that this rule does not prevent the payment of an interim payment.
132.Subsection (3)(c) provides that any sum paid by way of interim payment is to be deducted from the final amount paid (so as to avoid double payment).
133.Subsection (4) inserts two new sections into the 1986 Act: new section 33ZB and new section 33ZC.
134.New section 33ZB provides for interim payments. It provides as follows—
A claim for such a payment can be made by a solicitor who is providing advice and assistance or legal aid and by an advocate who is providing legal aid.
A claim must include a declaration that the sum being sought does not exceed the total sum the person expects to be paid from the Fund for their work.
Where a claim for an interim payment is made, it must be granted, unless the Legal Aid Board considers that the sum sought is likely to exceed the total sum it would expect to pay the person for their work.
In assessing the total sum that is expected to be paid for the person’s work, the fact that the interim payment being sought will, if paid, in due course be deducted from the total sum (to avoid double payment) is not to be taken into consideration. However, any previously claimed interim payment would be deducted for the purposes of assessing the total sum that is expected to be paid for the work. The assessment is essentially looking at how much more the Legal Aid Board expects to pay the person than has already been paid.
135.New section 33ZC provides for the repayment of interim payments which prove to have been overpayments. This applies where the solicitor or counsel in question subsequently stops providing legal aid or advice and assistance to the person concerned (whether that is because the matter in relation to which it was being provided is at an end, the lawyer has withdrawn from acting, or for any other reason), and the total sum actually due to the solicitor or counsel is less than the total sum which was assumed would be due at the time of applying for the interim payment. The section provides as follows—
The solicitor or counsel in question is required to pay the Legal Aid Board a sum equal to the amount by which the interim payment exceeds the total sum that is due for the work.
For these purposes, the total sum that is due for the work is assessed without reference to the fact that interim payments have already been made: the comparison is between the total amount that would have been due had no interim payments been made, and the amount that was paid out as interim payments.
Where the interim payment was, at the solicitor’s request, paid to their firm rather than being paid to them personally, the firm is jointly and severally liable for the repayment due by that solicitor.
Where a firm is jointly and severally liable for a repayment and a separate sum is due to be paid to that firm, the Legal Aid Board is entitled to offset all or part of the repayment that is due to the Board.
The recovery mechanisms provided for by the section are in addition to, and do not limit, the use of any other recovery mechanisms that are available under the general law (for example, under the law of unjustified enrichment).
136.Subsection (5) revokes regulation 11 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989. That regulation also allowed for interim claims for payment to be made pending the completion of legal proceedings. The new scheme for interim payments means regulation 11 is no longer required.
Freedom of information
Section 36: Freedom of information: giving notice electronically
137.This section amends section 74(1)(a) of the Freedom of Information (Scotland) Act 2002 so that formal notices under that Act may be given electronically, as well as being delivered in person or posted. This makes permanent the temporary modification of the 2002 Act which was made by paragraph 7 of schedule 6 of the Coronavirus (Scotland) Act 2020.
Mental health
Section 37: Mental health: removal of need for witnessing of signature of nominated person
138.Section 250(2A) of the Mental Health (Care and Treatment) (Scotland) Act 2003 provides that the nomination of a named person is only valid if a docket to the nomination states that the person nominated has consented to the nomination, the docket is signed by the nominated person, and the nominated person’s signature is witnessed by a “
139.Section 37 of this Act amends section 250(2A) of the 2003 Act so that the nominated person’s signature will no longer require to be witnessed by a prescribed person. This replicates permanently the temporary modification made by paragraph 15 of schedule 1 of the Coronavirus (Scotland) (No.2) Act 2020.
Care services
Section 38: Care services: giving of notices by SCSWIS
140.Section 101 of the Public Services Reform (Scotland) Act 2010 sets out how Social Care and Social Work Improvement Scotland (otherwise known as the Care Inspectorate) is to give a notice to a person providing, or seeking to provide, a care service when required to do so under that Act.
141.Section 38 of this Act amends the law on giving notice by “
142.The new section 101(1)(a)(ii) and (2) of the Public Services Reform (Scotland) Act 2010 enable the Care Inspectorate, when delivering a notice personally to a body corporate (for instance, following an on-site inspection), to serve it on a wider range of people, including a care home manager or a director, secretary or other similar officer of the body. Section 101(1)(c) also enables the Care Inspectorate to send formal notices to registered care service providers, and those seeking to provide a care service, by electronic means.
143.Section 101(3) and (4) set out the practicalities of giving notice by post or electronic means to care service providers and those seeking to provide a care service, including when receipt of those notices is deemed to have taken place.
144.Section 101(4) provides further detail in relation to notices given by the Care Inspectorate by electronic means. Notices under this provision may be given when a person has indicated to the Care Inspectorate that it is willing to receive them in this way. An indication of a person’s willingness may be specific to the notice in question or more generally applicable to notices or other documents of that kind. Willingness may be communicated directly to the Care Inspectorate or expressed more generally on a website or by some other similar expression. Unless a person has indicated otherwise, willingness to receive a notice by electronic means may also be inferred from a person’s previous willingness to receive notices or documents in this way. Electronic transmission may also take place where a notice has been uploaded to an electronic storage system from which the person is able to download the notice and that person is sent a notification informing them that a notice has been uploaded in this way.
Requirements of writing
Section 39: Disapplication of physical presence requirements
145.This section enables lawyers to carry out certain formal processes remotely. Specifically, it removes any legal requirement for a lawyer to be physically present in order to witness someone signing a document or to take someone’s oath or to receive their affirmation or declaration and it removes any legal requirement for a lawyer who is signing a document to do so in the physical presence of another person.
Custody at police stations
Section 40: Custody officers’ functions
146.This section allows prisoner custody officers and police custody and security officers to have custody of a person who is appearing before a court virtually from a police station.
147.Once a person has been charged by the police (or arrested by police on a warrant requiring them to be brought before a court), if the person is to remain in custody, the person has to appear before a court as soon as possible. Before there was the possibility of having someone appear before a court remotely, prisoners would be taken to a court building by the police or by prisoner custody officers (a role created by the Criminal Justice and Public Order Act 1994). In court, they would usually be in the custody of prisoner custody officers. Prisoners in a court building could also be kept in the custody of police custody and security officers (a role first created by the Criminal Justice (Scotland) Act 2003, but which now has its legal basis in the Police and Fire Reform (Scotland) Act 2012).
148.The legislation giving prisoner custody officers and police custody and security officers the power to hold people in their custody while appearing before a court was framed so that they could only exercise the power in a court building. Therefore they could not hold in their custody arrestees appearing before a court from a police station via a TV link. Subsections (2)(a) and (4) of section 40 extend the powers of prisoner custody officers and police custody and security officers (respectively), so that they can.
149.Subsection (2)(b) makes a consequential adjustment so that a prisoner custody officer in a police station has the same duty to give effect to an order from a court under section 212 of the Criminal Procedure (Scotland) Act 1995 as the officer would in a court building. An order under that section is an order a court can make having imposed a fine on a person. It is an order to an official to search the person for money that can be used to pay the fine.
150.Subsection (6) makes a consequential adjustment to the definition of “police custody” in Part 1 of the Criminal Justice (Scotland) Act 2016. Being in police custody (as defined) has various consequences under Part 1 of the Criminal Justice Act. Being transferred into the custody of someone who is not a police constable or a police custody and security officer is one way that someone who has been arrested can stop being in police custody. Being transferred into the custody of a prisoner custody officer is therefore one way that a person can stop being in police custody. Subsection (3) adjusts the definition so that a person who is transferred into the custody of a prisoner custody officer while at a police station is not treated as having left police custody at that point.
151.Subsection (8) makes a connected adjustment to section 2 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. That section sets out circumstances in which an investigation into a death has to be carried out because the person died in custody. One of the circumstances in which an investigation must be carried out is when a person has died in “
152.Section 40(8) of this Act therefore amends the Fatal Accidents Act so that the obligation to investigate persists so long as a person is in custody at a police station, even if a virtual court appearance means the person is no longer in “
Parole Board for Scotland
Section 41: Chairperson’s functions
153.Legislation gives the chairperson of the Parole Board for Scotland certain powers and duties. Circumstances may arise in which the chairperson is temporarily unable to fulfil the functions of the office (due to illness, for example) or the office of chairperson may become temporarily vacant (for example in the event of the office holder’s death).
154.Section 41 enables, and indeed creates a requirement for, the chairperson to produce a scheme setting out which other member, or members, of the Parole Board can exercise the chairperson’s functions in the event that the chairperson cannot or there is no chairperson. Section 41 also allows the chairperson to delegate functions of the office to other members of the Parole Board at times when the chairperson is available to exercise them.
Children’s hearings
Section 42: Members of children’s hearings
155.This section modifies the duty that section 6(3) of the Children’s Hearings (Scotland) Act 2011 imposes on the National Convener of Children’s Hearings Scotland to ensure that every children’s hearing includes both a male and female member. It qualifies the duty to allow for its not being practicable in every case for a hearing to have both a male and female member.
Part 4: Tenancies
Removal of mandatory eviction grounds
Section 43: Private residential tenancies: discretionary eviction grounds
156.This section puts on a permanent footing the temporary changes made by paragraph 1 of schedule 1 of the Coronavirus (Scotland) Act 2020. It amends the Private Housing (Tenancies) (Scotland) Act 2016 (“
157.The vast majority of tenancies which have been granted in the private rented sector since the 2016 Tenancies Act came fully into force are private residential tenancies. It is not possible to opt out of the private residential tenancy regime, although there are some tenancies which will not meet the necessary criteria to fall within it. For example, to be a private residential tenancy, the tenant must at some point have occupied the property as their only or main home. In addition, some property types or letting arrangements are excluded, such as designated student accommodation, living with a resident landlord or social housing (see schedule 1 of the 2016 Tenancies Act for a full list of excluded tenancies). Nevertheless, in most cases, the rules on eviction from privately let properties will be governed by the rules in schedule 3 of the 2016 Tenancies Act (read alongside Part 5 of that Act).
158.Prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020, some eviction grounds for private residential tenancies were mandatory and some were discretionary. An eviction ground is referred to as “
159.The eviction grounds which are changed from mandatory to discretionary on a permanent basis under this section are as follows—
the landlord intends to sell the property (paragraph 1 of schedule 3 of the 2016 Tenancies Act),
the property is to be sold by the lender under a heritable security (paragraph 2 of schedule 3),
the landlord intends to refurbish and it would be impracticable for the tenant to continue to occupy the property throughout those works (paragraph 3 of schedule 3),
the landlord intends to live in the property as their only or main home (paragraph 4 of schedule 3),
the landlord intends to use the property for a non-residential purpose (paragraph 6 of schedule 3),
the tenancy was granted as part of the tenant’s ongoing or proposed employment by the landlord but the tenant is no longer, or did not become, such an employee (paragraph 8 of schedule 3),
the tenant is not occupying the property as their only or main home, and nor is any person with a lawful sub-tenancy of the property (paragraph 10 of schedule 3),
the tenant has been convicted of a relevant crime (being one either relating to the property or one which occurred in the vicinity of it and which is punishable by imprisonment) (paragraph 13 of schedule 3).
160.In addition, there are two eviction grounds which, prior to the temporary changes made by the Coronavirus (Scotland) Act 2020, could be either discretionary or mandatory depending on the precise circumstances in which eviction was being sought. Both of those eviction grounds are modified by this section so that there will, on a permanent basis, now only be a discretionary eviction ground available. Those grounds are as follows—
the property is held for use in connection with a religious purpose and is required for that purpose (paragraph 7 of schedule 3),
the tenant has been in rent arrears for at least three consecutive months (paragraph 12 of schedule 3).
161.All of these eviction grounds will be dealt with in the same way as those eviction grounds which have always been discretionary under the 2016 Tenancies Act (such as the landlord’s close family member intending to live in the property, or the tenant having breached the tenancy agreement in some way unrelated to rent arrears).
162.Although there is a reference in subsection (3)(k) of this section to the eviction ground of anti-social behaviour, it should be noted that this has always been a discretionary eviction ground. Since enactment, paragraph 14(2) of schedule 3 of the 2016 Tenancies Act has provided that the Tribunal “may”, rather than “must”, issue an eviction order where eviction is sought on the basis of anti-social behaviour. Paragraph (k) simply adds in, for the sake of consistency, that if ordering eviction on this ground then the Tribunal must be satisfied that it is reasonable to do so.
Section 44: Assured tenancies: discretionary eviction grounds
163.This section puts on a permanent footing the temporary changes made by paragraph 3 of schedule 1 of the Coronavirus (Scotland) Act 2020. It amends the Housing (Scotland) Act 1988 (“
164.Prior to the 2016 Tenancies Act, most tenancies were assured tenancies. As with private residential tenancies, it was not possible to opt out of the assured tenancy regime, although there were some tenancies which did not meet the necessary criteria to fall within it. For example, to be an assured tenancy, the tenant had to be a person occupying the property as their only or main home. In addition, schedule 4 of the 1988 Act lists various property types or letting arrangements which cannot be assured tenancies, such as certain student lets, a tenant living with a resident landlord or social housing. The private residential tenancy replaced the assured tenancy and since the 2016 Tenancies Act came fully into force, it has not been possible to grant a new assured tenancy (see schedule 5 of that Act). However, existing assured tenancies were allowed to continue (although the parties could opt to convert them if they wished).
165.As with private residential tenancies, prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020, some eviction grounds for assured tenancies were mandatory and some were discretionary. A commonly used type of assured tenancy was the short assured tenancy, which, unlike other assured tenancies, could be terminated under section 33 of the 1988 Act simply on the basis of having reached its previously agreed end date. However, the majority of eviction grounds (referred to in the 1988 Act as “grounds for possession”) are set out in schedule 5 of the 1988 Act and apply to all types of assured tenancy.
166.The eviction grounds which change from mandatory to discretionary on a permanent basis under this section can be broadly summarised as follows—
the property was let under a short assured tenancy, the tenancy has reached its end date, and tacit relocation is not operating (section 33 of the 1988 Act),
the property was previously occupied by the landlord and is now needed for the landlord or their spouse/civil partner as their only or main home (ground 1 in schedule 5 of the 1988 Act),
the property is to be sold by the lender under a heritable security (ground 2 in schedule 5),
the property was let for 8 months or less, and was let as a holiday home within the year preceding the tenancy (ground 3 in schedule 5),
the property was let for a year or less, and was let as student accommodation within the year preceding the tenancy (ground 4 in schedule 5),
the property is held for use in connection with a religious purpose and is required for that purpose (ground 5 in schedule 5),
the landlord intends to demolish or carry out substantial work to the property and cannot reasonably carry out the work without the tenant giving up possession (ground 6 in schedule 5),
the tenancy was inherited and proceedings for recovery of possession were commenced within a year of the former tenant’s death (ground 7 in schedule 5),
167.These eviction grounds will be dealt with in the same way as those eviction grounds which have always been discretionary under the 1988 Act (such as the tenant having been convicted of relevant anti-social behaviour, having been persistently late in paying rent, or having breached the tenancy agreement in some other way).
168.In addition, one eviction ground is repealed on the basis that it is now superfluous. Ground 8 in schedule 5 allowed eviction on the basis of rent arrears provided that, both at the date of serving notice of proceedings and at the date the proceedings begin, the arrears amounted to at least three months’ rent. However, Ground 12 in schedule 5 allows eviction on the basis of rent arrears without the arrears having to be of a particular amount (although they must still exist both at the date of serving notice of proceedings and at the date the proceedings begin). While previously the more serious rent arrears ground served a purpose because it gave rise to a mandatory, rather than discretionary, case for eviction, that will no longer apply. As such, ground 8 no longer serves any purpose as any eviction that would otherwise have been sought under it can be sought under ground 12 instead.
Section 45: Tenancies under the Rent (Scotland) Act 1984: discretionary eviction grounds
169.This section puts on a permanent footing the temporary changes made by paragraph 5 of schedule 1 of the Coronavirus (Scotland) Act 2020. It amends the Rent (Scotland) Act 1984 (“
170.The 1984 Act tenancy regime of “regulated tenancies” pre-dated the introduction of assured tenancies. Again, this was effectively a type of “wrapper” imposing certain rules which automatically applied to tenancies which met the criteria set out in the legislation. Part 1 of the 1984 Act sets out various property types or letting arrangements which are excluded from the regime, such as certain student lets, a tenant living with a resident landlord or social housing. New tenancies under the 1984 Act were phased out under sections 42 to 46 of the 1988 Act. There are therefore likely to be exceedingly few tenancies (if any) still operating under this legislative regime.
171.As with private residential tenancies and assured tenancies, prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020, some eviction grounds for tenancies under the 1984 Act were mandatory and some were discretionary. The grounds for granting an eviction order (referred to in the 1984 Act as an “order for possession”) are set out primarily in schedule 2 of the 1984 Act.
172.The eviction grounds which change from mandatory to discretionary on a permanent basis under this section can be broadly summarised as follows:
the property was previously occupied by the landlord and it is now needed for the landlord or their family member, or is to be sold by the lender under a heritable security or is required following the landlord’s death (case 11 in schedule 2 of the 1984 Act),
the property was acquired with the intention of being used as a retirement home and the landlord has now retired and requires it, or it is to be sold by the lender under a heritable security or is required following the landlord’s death (case 12 in schedule 2),
the property was let for 8 months or less, and was let as a holiday home within the year preceding the tenancy (case 13 schedule 2),
the property was let for a year or less, and was let as student accommodation within the year preceding the tenancy (case 14 in schedule 2),
the property was let under a short tenancy and the short tenancy has ended (case 15 in schedule 2),
the property is held for use in connection with a religious purpose and is required for that purpose (case 16 in schedule 2),
the property has been used in connection with agricultural work and various other related criteria are met (cases 17 to 19 in schedule 2),
the property is tailored to meet special needs, the tenant does not have such needs and the property is required for a person who has such needs (case 20 in schedule 2),
the landlord is in the armed forces and requires the property as a residence or it is to be sold by the lender under a heritable security or is required following the landlord’s death (case 21 in schedule 2).
173.These eviction grounds will be dealt with in the same way as those eviction grounds which have always been discretionary under the 1984 Act (such as the tenant having been convicted of relevant anti-social behaviour, being in rent arrears, or having breached the tenancy agreement in some other way).
Pre-action protocol in respect of evictions relating to rent arrears
Section 46: Private residential tenancies: pre-action protocol
174.This section puts on a permanent footing the temporary changes made by paragraph 5 of schedule 1 of the Coronavirus (Scotland) (No.2) Act 2020. It amends the 2016 Tenancies Act to allow for the implementation, on a permanent basis, of a pre-action protocol which will apply in relation to any attempt by a landlord to end a private residential tenancy on the ground of rent arrears.
175.The section gives the Scottish Ministers a regulation-making power (subject to the affirmative procedure) to stipulate a pre-action protocol which will apply in such cases. While compliance with this protocol will not be compulsory, the First-tier Tribunal will be required, when considering whether it is reasonable to grant an application for an eviction order on the ground of rent arrears, to take into account the extent to which the landlord has complied with the protocol.
176.As the change is to be a permanent one, any pre-action protocol that is imposed will apply regardless of why the rent arrears have arisen, so it will not matter whether or not they arose during the period of the coronavirus pandemic. This contrasts with the Coronavirus (Scotland) (No.2) Act 2020 where the legislation required there to be a link.
177.The terms which have been imposed using the comparable power under the Coronavirus (Scotland) (No.2) Act 2020 are set out in the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 (SSI 2020 No. 304). These regulations require the Tribunal to consider matters such as whether the landlord has provided the tenant with clear information on how to access advice on their rent arrears, whether the landlord has made reasonable efforts to agree a reasonable payment plan, and whether the landlord has given reasonable consideration to the steps taken by the tenant and the tenant’s circumstances.
Section 47: Assured tenancies: pre-action protocol
178.This section puts on a permanent footing, subject to a minor modification, the temporary changes made by paragraph 4 of schedule 1 of the Coronavirus (Scotland) (No.2) Act 2020. It amends the 1988 Act to allow for the implementation, on a permanent basis, of a pre-action protocol which will apply in relation to any attempt by a landlord to end an assured tenancy (including a short assured tenancy) on a ground relating to rent arrears.
179.The section gives the Scottish Ministers the same regulation-making power (subject to the affirmative procedure) in respect of assured tenancies that they are given in relation to private residential tenancies under section 46.
180.The 1988 Act contains more than one eviction ground relating to rent arrears. Grounds 8 and 12 require there to be arrears on a particular date, whereas ground 11 can apply where the rent has persistently been paid late regardless of whether or not it is in arrears on a particular date. However, ground 8, which required the arrears to be of a specified amount, is now being repealed under section 44 (as any eviction that would otherwise have been sought under it can be sought under ground 12 instead, given that there is now no distinction in terms of Tribunal discretion). While the Coronavirus (Scotland) (No.2) Act 2020 applied the ability to put in place a pre-action protocol only to cases where the arrears met the threshold for ground 8, it is now applied to all of the rent-related grounds remaining in the 1988 Act.
Saving and transitional provision
Section 48: Tenancies: saving provision
181.This section makes saving provision to deal with notices that are served before 1 October 2022 (i.e. before the date of commencement of Part 4). This will affect eviction proceedings that are raised in relation to those notices even if the eviction proceedings themselves are only raised on or after 1 October 2022.
182.In all such cases, sections 43 to 47 of this Act will not apply. Instead, the law as modified by the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No.2) Act 2020 will continue in effect, despite the expiry of Part 1 of those Acts. Similarly, the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 will also continue to apply.
183.The result is that the existing temporary law on evictions will continue to apply to all pre-commencement eviction notices and all eviction proceedings raised in relation to those notices.
184.In most places, the provision made by this Act is the same as the existing temporary law. However, as set out above, some minor changes are made by this Act: for example, the pre-action protocol in section 47 applies to all rent arrears eviction grounds under the 1988 Act, not just one of them. Section 48 therefore ensures that if a notice is served by a landlord on the basis of the current law, the position that applies to the parties involved does not change.
Section 49: Tenancies: transitional provision
185.This section makes transitional provision to ensure that there is no gap between the revocation of the current pre-action requirements and the implementation of this Act’s replacement pre-action protocol, particularly in light of the relatively early dates for expiry of the current law and commencement of the new law.
186.The avoidance of any gap is achieved by subsections (1) and (2). These subsections continue in force the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 and deem them to have been made under the powers inserted by sections 46 and 47 of this Act. Subsection (3) deals with any references in the pre-action requirements which need to be updated in order for that document to be read as being the pre-action protocol which is provided for under this Act. Subsection (4) then essentially ensures that this section applies only to post-commencement eviction notices and connected eviction proceedings. To the extent that the regulations are continued in force by section 48, they should be read without any of these changes (because the existing law is continued in force without any changes for the cases covered by section 48, and therefore no changes to the regulations are required in that context).
187.The pre-action protocol under this Act will therefore (at least initially) contain the same provisions as the current pre-action requirements specified under the Coronavirus (Scotland) (No.2) Act 2020. The regulations will be able to be revoked at a later date, and new regulations made under the powers created by this Act.
Part 5: Temporary Justice Measures
Overview
188.The schedule makes changes to the law that are only temporary, in the sense that they will stop being law unless the Scottish Parliament agrees each year to their continuing to be law and they can only continue to be law until 30 November 2025 at the latest.
189.Part 5 incorporates the schedule into this Act and deals with how and when its provisions stop having legal effect. The latter sections of the Part make some changes to the law that need to stay in effect beyond the lifetime of the temporary provisions.
Section 50: The measures
190.This section introduces the schedule of this Act.
Section 51: Power to suspend and revive
191.This section allows the Scottish Government to temporarily stop provisions in the schedule having legal effect (suspend them) and to then restore their legal effect (revive them).
192.Only provisions that have not fully expired under section 52 or 53 can be suspended and revived.
193.Regulations to suspend or revive a provision are subject to parliamentary scrutiny under the negative procedure (see section 54).
194.Subsection (2) applies the default statutory rules that deal with the effect of repealing legislation (i.e. permanently removing it from the statute book) to a case where a provision is merely suspended. In broad terms, the default rules under sections 15 to 17 of the Interpretation and Legislative Reform (Scotland) Act 2010 mean that anything that was legally or illegally done under a law before its repeal (or in this case suspension) continues to be treated as having been done legally or illegally (respectively). For example, paragraph 15 of the schedule allows the court to reschedule when a person is to appear before it. If that paragraph were to be suspended, any appearance dates the court set before the suspension would still be treated as valid.
Section 52: Expiry
195.This section will cause all the temporary measures in the schedule (apart from any that were expired earlier under section 53) to cease to have legal effect on the date stated in subsection (1). The expiry date is initially stated to be 30 November 2023.
196.Subsection (2) allows the Scottish Government to make regulations to push the expiry date back a year at a time, but they cannot push it back beyond 30 November 2025.
197.Subsection (3) requires the Government to review the operation of schedule provisions before they expire in order to decide whether to push their expiry date back; this duty does not apply ahead of provisions expiring in 2025 because the Government has no power to push expiry back beyond the end of November that year. Subsection (6) requires the Government to consult others as part of the review process.
198.The Government cannot make any regulations to push the expiry date back unless the Parliament approves them in draft first (see section 54). Section 52(7) further provides that when laying draft regulations before the Parliament for its approval, the Government also has to lay before the Parliament a statement explaining why it is seeking to push the expiry date back, the findings of its most recent review under subsection (3) and a summary of what consultation was carried out in undertaking that review.
199.Provisions of the schedule that expire will be subject to the same default statutory rules as they would were they repealed (see section 18, together with section 1(6), of the Interpretation and Legislative Reform (Scotland) Act 2010).
Section 53: Power to bring expiry forward
200.Rather than wait for provisions in the schedule to expire under section 40, this section allows the Scottish Government to expire provisions sooner.
201.Regulations under section 53 are subject to the negative procedure (see section 54).
Section 54: Regulations under Part 5
202.This section makes clear that regulations under the preceding sections of the Part can make different provision for different purposes and sets out the parliamentary scrutiny procedures that apply to those regulations.
203.The negative procedure is defined by section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010.
204.The affirmative procedure is defined by section 29 of that Act.
Section 55: Criminal procedure time limits: consequential modifications
205.This section makes permanent changes to the Criminal Procedure (Scotland) Act 1995 (the “
Section 56: Criminal procedure time limits: transitional and saving provision
206.This section prevents modifications made by section 55 of this Act, and paragraphs 20 and 22 of this Act’s schedule, from affecting criminal proceedings that are already underway when those modifications come into effect on 1 October 2022 (see section 59, which deals with commencement arrangements). The modifications in question relate to certain time limits in criminal proceedings.
207.This section further provides that the modifications temporarily made to time limits in criminal proceedings by certain provisions of the Coronavirus (Scotland) Act 2020 continue to apply in relation to proceedings underway on 1 October 2022, despite that Act expiring. The cumulative effect of the section is to ensure that the rules on time limits which applied when criminal proceedings got underway stay the same throughout those proceedings, unaffected by changes made by this Act or the expiration of changes made by the 2020 Act.
208.References in the preceding paragraphs to a criminal case getting underway mean the accused first being brought before a court after being served with the document indicating the charges the accused is facing. In the context of summary proceedings, that document is called a complaint. In the context of solemn proceedings, that document is called a petition (although, to be clear, the document that specifies the offences that an accused is formally being charged with in solemn procedure is served later in the process and is called an indictment).
Section 57: Effect of early release from prison or young offenders institution by virtue of regulations
209.This section makes provision in connection with the temporary provision in Part 7 of the schedule, and the temporary provision which preceded that in paragraphs 19 and 20 of schedule 4 of the Coronavirus (Scotland) Act 2020.
210.The temporary provisions in question allow regulations to be made authorising people’s early release from prisons and young offenders institutions. In order to deal with the consequences of their release (for example whether they are released on licence or unconditionally), section 57 provides that people released due to regulations are to be treated as though they were released through the normal statutory process that would most likely have been the legal basis for their release had they not been released early under the regulations. Section 57 has to remain the law longer than the temporary power to release people by regulations in order to provide an ongoing basis for understanding the legal basis of those people’s release.
Part 6: Final Provisions
Section 58: Ancillary provision
211.Section 58 gives the Scottish Ministers power to make ancillary provision (for example consequential amendments and transitional arrangements) in connection with giving full effect to this Act or any regulations made under it.
Section 59: Commencement
212.This section provides for when the provisions of this Act come into force. The majority come into force in accordance with the table in subsection (1): for example, sections 58, 59 and 60 of this Act come into force at the beginning of the day after Royal Assent. Subsections (2) and (3) make special provision in relation to sections 25 and 27.
213.The remaining provisions of this Act (that is, sections 16 and 17 in Part 2, and sections 28 and 29 in Part 3) come into force as provided for in regulations made by the Scottish Ministers. Those regulations may contain transitional, transitory or saving provision and may make different provision for different purposes.
Section 60: Short title
214.This section provides that the short title of this Act is the Coronavirus (Recovery and Reform) (Scotland) Act 2022.
Schedule: Temporary Measures
Part 1: Courts and Tribunals: Conduct of business by electronic means, etc.
Chapter 1: Documents
215.Paragraph 1(1) allows an electronic signature to fulfil any requirement (however expressed and for whatever purpose) that a document mentioned in paragraph 3, or a deletion or correction of it, be signed, initialled or signetted.
216.Paragraph 2(1) makes provision that any requirement (however expressed) that a document of a type mentioned in paragraph 3 be given to a person, may be fulfilled by (a) transmitting it to the person electronically, or (b) transmitting it (electronically or otherwise) to a solicitor engaged to act on the person’s behalf in relation to the proceedings in question.
217.Paragraph 2(2) sets out certain requirements associated with the electronic transmission of documents, specifying that the transmission must be effected in a manner that the recipient has indicated (either specifically or generally) that they are willing to receive the document. The sub-paragraph further provides that in certain specified circumstances willingness is capable of being inferred.
218.Paragraph 2(3) sets out the interpretation applicable to terms used in paragraph 2.
219.By virtue of paragraph 3(1), paragraphs 1 and 2 apply to orders, warrants, sentences, citations, minutes or any other document produced by a court or tribunal, including any extracts of them. These paragraphs also apply to any document which is required by law be given to a person in connection with any civil or criminal proceedings before a court or tribunal, which includes documents required to initiate proceedings, and documents used as, or to certify, evidence.
220.Paragraphs 3(2) and (3) confer a power on the Lord President or the Lord Justice General to direct that the effects of paragraphs 1 and 2 do not apply to a specified type of document, either in relation to some or all proceedings.
221.Paragraph 4 allows a requirement to give notice for the purpose of legal proceedings to be fulfilled by giving notice on the Scottish Courts and Tribunals Service’s website rather than by posting a physical notice inside or outside a court building.
222.Paragraph 5 sets out the interpretation applicable to terms used in this Chapter.
Chapter 2: Attending a court or tribunal
Overview of Chapter 2
223.Chapter 2 of Part 1 of the schedule removes, or allows for the removal of, requirements for people to physically attend court or tribunal hearings. Reflecting different default positions on the removal of requirements for physical attendance:
paragraph 6 deals with non-criminal cases and it also deals with criminal trials and processes before criminal courts in which the only party is a public official
paragraph 7 deals with criminal cases, apart from trials and processes in which the only party is a public official
224.Where the requirement to physically attend has been removed by paragraph 6 or 7, paragraph 8 requires people to attend virtually instead.
Suspension of requirement for physical attendance in non-criminal proceedings, criminal trials and certain processes
225.Paragraph 6 removes requirements for people to physically attend court or tribunal hearings. It generally makes virtual attendance the default position, with the court or tribunal having an option to order an in-person hearing. But for hearings at which someone is to give evidence, the default position is reversed so that in-person attendance will be required, unless the court specifically directs a person to attend virtually. Paragraph 6(5) sets the test for reversing the default rule by ordering physical attendance at a hearing other than one at which evidence is to be given. It provides that a court or tribunal may only require the physical attendance of a person if allowing the person to attend by electronic means would prejudice the fairness of proceedings, or would otherwise be contrary to the interests of justice.
226.Sub-paragraph (6) sets the test for reversing the default rule by ordering a person’s virtual attendance at a hearing at which evidence is to be given. The test is that the court or tribunal must be satisfied that attendance by electronic means would not prejudice the fairness of proceedings, or otherwise be contrary to the interests of justice.
227.Sub-paragraph (7) provides that the power to issue a direction under sub-paragraphs (2) and (4) includes the power to revoke an earlier direction under that sub-paragraph.
228.Sub-paragraph (8) provides that a court or tribunal may issue or revoke a direction under sub-paragraph (2) or (4) on the motion of a party or of its own accord.
229.Sub-paragraph (9) provides that the court or tribunal must, in considering whether to issue or revoke a direction under sub-paragraph (2) or (4), other than a first direction in relation to a hearing, give all parties to the proceedings an opportunity to make representations. It further requires the court or tribunal to have regard to any guidance issued by the Lord President or the Lord Justice General.
230.The first direction under sub-paragraph (2) or (4) in relation to a hearing can be issued without giving the parties an opportunity to make representations first. This means a court or tribunal can initially tell individuals how they are to appear before it. Where a court or tribunal proceeds in that way, sub-paragraph (11) requires it to ensure that parties know they can request the court or tribunal to change the way that it has asked an individual to attend, and if a party makes that request the court or tribunal must consider it before dealing with any substantive matters at the hearing.
231.Sub-paragraph (12) provides that references to physically attending a court or tribunal are to being in a place for the purpose of any “
Suspension for requirement for physical attendance in criminal proceedings, excluding trials and certain processes
232.Paragraph 7(2)(a) allows the Lord Justice General to make determinations relieving people from the requirement to attend criminal courts in person. It does not apply in relation to trials, which are instead governed by paragraph 6. Despite a determination by the Lord Justice General generally relieving people from having to attend certain proceedings in person, paragraph 7(2)(b) allows a court to require in-person attendance in an individual case.
233.A determination by the Lord Justice General could, for example, provide that accused persons are to attend sentencing hearings by electronic means. A determination might also empower courts in individual cases to remove the requirement for in-person attendance. A determination can make different provision for different areas, so could be used to pilot virtual attendance in certain localities.
234.Where a person is allowed to attend a hearing virtually because of a determination by the Lord Justice General under paragraph 7(2)(a), sub-paragraph (6) requires the court to ensure that the parties know they can request the court to direct the person to attend in person instead, and requires the court to deal with that request before any substantive matter at the hearing.
Attending by electronic means
235.Paragraph 8(1) provides that a person excused from a requirement to physically attend a court or tribunal must instead appear by electronic means in accordance with a direction issued by the court or tribunal.
236.Sub-paragraph (2) provides that where a person fails to attend by electronic means in accordance with such a direction, they are to be regarded as having failed to comply with the requirement to physically attend from which they were excused under paragraph 6 or 7.
237.Sub-paragraph (3) provides that a court or tribunal may vary or revoke a direction made under sub-paragraph (1).
238.Sub-paragraph (4) provides that a direction is to set out how a person is to appear by electronic means before the court, tribunal or office holder, and may include any other provision the court or tribunal considers appropriate.
239.Sub-paragraph (5) provides that a court or tribunal may issue a direction under sub-paragraph (1) on the motion of a party or of its own accord.
240.Sub-paragraph (6) provides that before issuing a direction under sub-paragraph (1), other than a first direction in relation to a hearing, the court or tribunal must give all parties an opportunity to make representations. It further requires the court or tribunal to have regard to any guidance issued by the Lord President or the Lord Justice General.
241.Sub-paragraph (8) provides that, where an initial direction under sub-paragraph (1) has been issued in relation to a hearing without giving the parties an opportunity to make representations first, the court or tribunal must ensure the parties know that they can request that a different direction be made and, if such a request is made, the court or tribunal has to deal with it before any other substantive issue.
242.Sub-paragraph (9) provides that a direction under sub-paragraph (1) must ensure that a party to trial proceedings, which includes an accused person, uses electronic means that enables the party to both see and hear all of the other participants in a hearing, including any witness who is giving evidence. A direction to a witness who is giving evidence at a trial using electronic means must enable all of the other participants in the trial, which includes an accused person, to both see and hear the witness. Any direction by a court or tribunal which is not in relation to trial proceedings sets no specific requirements.
243.Sub-paragraph (10) provides that nothing in sub-paragraph (8) is to be taken to mean that a person is to be enabled to see or hear a witness in a way that measures taken in accordance with an order of the court or tribunal, such as special measures in relation to a vulnerable witness, would otherwise prevent.
General directions under paragraph 8
244.Paragraph 9(1)(a) allows a court or tribunal to issue a general direction under paragraph 8(1) that applies to all proceedings of a specified type, provided that the only party to such proceedings is a public official. This would allow a court, for example, to issue a direction as to how applications for search warrants should be made by the procurator fiscal. Paragraph (b) allows a court or tribunal to issue a further direction overriding a general direction issued under paragraph (a) in individual cases. The requirement to give parties the opportunity to make representations under paragraph 8(6)(a) in relation to a general direction issued by virtue of sub-paragraph (1)(a) is disapplied.
Chapter 3: Further provision
Publication of directions and guidance
245.Paragraph 10 requires the publication of certain directions and guidance.
Transitional provision for directions under earlier enactment
246.Paragraph 11 provides that any direction made under a provision of schedule 4 of the Coronavirus (Scotland) Act 2020 specified in sub-paragraph (1) or paragraph 4(1)(a) of schedule 4 of that Act is to be treated as having been made under the corresponding provision of this Act.
Interpretation of Part
247.Paragraph 12 provides definitions for words and terms used in the other paragraphs of Part 1 of the schedule.
Part 2: Fiscal fines
248.Paragraph 13(2) makes similar provision to the temporary modifications to the Criminal Procedure (Scotland) Act 1995 and the Criminal Procedure (Scotland) Act 1995 Fixed Penalty Order 2008 (S.S.I. 2008/108) made by paragraph 7 of schedule 4 of the Coronavirus (Scotland) Act 2020. It provides that the maximum available fixed penalty that may be offered by the procurator fiscal under section 302 of the 1995 Act is £500. Prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020, the maximum penalty was £300.
249.Paragraph 14(2) substitutes the scale of fixed penalties in S.S.I. 2008/108 with a new scale. This scale is different to the scale that operated by virtue of the Coronavirus (Scotland) Act 2020. The main difference is that although the maximum penalty is the same there are now 9 levels instead of 7. The amounts in levels 1 to 7 are identical to the scale that operated prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020 (i.e. £50 to £300). The 2 additional levels provide for the amounts of £400 and £500.
Part 3: Failure to appear before court following police liberation
250.Paragraph 15(1) makes provision which enables the court to prevent the expiry of an undertaking given under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 when certain conditions are met.
251.Sub-paragraph (2) makes a consequential amendment to section 29(1)(a) of the Criminal Justice (Scotland) Act 2016 by introducing reference to new section 29A.
252.Sub-paragraph (3) inserts a new section 29A into the Criminal Justice (Scotland) Act 2016, which deals with expiry of undertakings. The new section 29A enables the court to modify the terms of an undertaking given under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016 by changing the time at which the person who gave the undertaking is to appear at court where certain conditions are met, as set out in subsection (1). Where the court exercises this power, this has the effect of the undertaking and any conditions attached to it continuing until the newly specified time at which the person is to appear at court.
253.Those conditions are:
the person has failed to appear at court as required by the terms of the undertaking,
the court considers that the failure to appear is attributable to a reason related to coronavirus, and
the court does not consider it appropriate to grant a warrant for the person’s arrest on account of the failure to appear.
254.Subsection (2) requires the procurator fiscal to give notice, as soon as reasonably practicable, to the person who gave the undertaking that the terms of the undertaking have been modified, where the court makes such an order under subsection (1).
255.Subsection (3) prescribes the manner in which notice under subsection (2) must be effected and provides that the same requirements as in section 141 of the Criminal Procedure (Scotland) Act 1995 apply. This includes delivering the notice personally or leaving it at the person’s home.
256.Subsection (4) provides that the references in subsection (1) to the terms of the undertaking include those modified by the procurator fiscal under section 27(1) of the Criminal Justice (Scotland) Act 2016.
257.Subsection (5) provides that a reference in any enactment to the modification of the terms of an undertaking made by the procurator fiscal under section 27(1) is to be treated as including modification by the court under subsection (1).
Part 4: National jurisdiction for first callings from custody, etc.Ability to take first calling in any sheriff court and then maintain proceedings
258.Paragraph 16 provides that, where a person appears in court for the first time from custody in criminal proceedings, that calling of the case may be taken in any sheriff court in Scotland and may be dealt with in that court by a sheriff of any sheriffdom. Paragraph 18 goes on to ensure that when a court is dealing with a case for which it would not normally have territorial jurisdiction, the sheriff and the prosecutor have all the same powers to deal with it as they would if it were a case that fell within their normal territorial jurisdiction.
259.If more than one person is the subject of criminal proceedings, paragraph 16(3) allows the case to call before a court that would not normally have jurisdiction for the case provided that any one of the people who are the subject of the proceedings is in custody in connection with it. This means, for example, that a case in which two people are co-accused of committing a crime can call before a court that would not normally have jurisdiction for the case even although only one of them has been arrested for the crime and is therefore appearing from custody.
260.Paragraph 16(4) makes it the choice of the Lord Advocate or the procurator fiscal whether or not to rely on subsection (1) to call a case before a court that would not normally have jurisdiction to take it.
261.Paragraph 16(5) allows a sheriff court that has taken on the initial calling of a case by virtue of sub-paragraph (1) to continue dealing with it.
262.The continuing jurisdiction created by sub-paragraph (5) for criminal proceedings can continue until the proceedings’ end, except in the case of a prosecution where the jurisdiction for the proceedings (or part of them) may come to an early end under sub-paragraph (6). Sub-paragraph (6) will end a court’s jurisdiction for a prosecution in two situations:
The first is where the accused pleads not guilty and the prosecutor does not accept that plea. This means it is likely that the case will go to trial, which will be handled by the court that has normal territorial jurisdiction for the case. If an accused is charged with, say, two offences and pleads guilty to one and not guilty to the other, the continuing jurisdiction that sub-paragraph (5) creates over the proceedings will be lost only insofar as the proceedings relate to the charge to which the accused has pled not guilty. The court that has jurisdiction by virtue of sub-paragraph (5) would therefore be able to deal with the guilty plea as it sees fit, including by sentencing the accused for that.
The second point at which sub-paragraph (6) will end a court’s non-territorial jurisdiction for a case is when the accused is committed until liberated in due course of law, which means that the court has ordered the accused be held in prison while solemn proceedings (see paragraph 264) are ongoing.
263.Paragraph 16(7) provides for proceedings on indictment that follow from proceedings on petition to be treated as the same proceedings. In solemn criminal procedure (which is the procedure used for the most serious crimes), cases usually begin with a petition and then progress to an indictment, which sets out the formal charges against the accused. Paragraph 16(7) means that a court which began dealing with a case at the petition stage can continue dealing with it, under sub-paragraph (5), once it has reached indictment stage. In practice, because jurisdiction under sub-paragraph (5) ends with an accused being fully committed for trial, which marks one way the petition stage can end, the effect of sub-paragraph (7) is likely to be relevant only where an accused makes an early guilty plea under section 76 of the Criminal Procedure (Scotland) Act 1995.
Ability of any sheriff court to deal with proceedings following failure to appear
264.Paragraph 17 allows a sheriff court to deal with prosecution proceedings for which it would not normally have jurisdiction where the accused has come before it having been arrested for a failure to appear in those prosecution proceedings.
265.When an accused person fails to appear in court, the court can grant a warrant for the accused’s arrest. On arrest the person will be brought before a court as soon as is practicable. That court appearance will be a form of “ancillary proceedings” within the meaning of paragraph 19(1)(d) and therefore any sheriff court can deal with it by virtue of paragraph 16(1). The ancillary proceedings for failing to appear are separate from the main prosecution proceedings. If the person had been brought before the court that had normal territorial jurisdiction for the main prosecution proceedings, the court might have dealt with them as well as the proceedings for the person’s failure to appear. Paragraph 18 allows a court that has jurisdiction to deal with the ancillary proceedings to deal with the prosecution proceedings in the same way that the court with normal territorial jurisdiction would. In most cases that will mean rescheduling diets in light of a hearing having been missed when the accused failed to attend, but in the case of summary proceedings if the accused pleads guilty it may include sentencing the accused or ordering reports ahead of sentencing.
Further provision about extra-territorial jurisdiction
266.As mentioned in the preceding paragraphs, paragraph 18 supports paragraphs 16 and 17 by ensuring that sheriffs and prosecutors have the necessary powers to deal with cases that come before a court by virtue of those paragraphs. It also makes clear that paragraphs 16 and 17 supplement, rather than supersede, other legal bases for a sheriff court taking a case from outwith its normal territorial jurisdiction.
Part 5: Criminal procedure time limits
Chapter 1: Extension of periods
Solemn proceedings: periods within which procedural hearings and trial must commence
267.Paragraph 20 makes provision to temporarily extend certain statutory time limits contained in the Criminal Procedure (Scotland) Act 1995 relating to criminal proceedings, making similar provision to the temporary modifications made by paragraph 10 of schedule 4 of the Coronavirus (Scotland) Act 2020 and paragraph 1 of schedule 2 of the Coronavirus (Scotland) (No.2) Act 2020.
268.Sub-paragraph (2) amends section 65 of the Criminal Procedure (Scotland) Act 1995, which applies certain time limits in respect of solemn trials, by increasing the time limit within which a preliminary hearing or a first diet must be commenced following the first appearance of an accused from 11 months to 17 months and the time limit within which the trial must commence following that first appearance from 12 months to 18 months.
269.If the preliminary hearing, or (as the case may be) first diet or trial are not commenced within the respective periods, the accused must be discharged from any indictment in respect of the offence and must not at any time be proceeded against on indictment in respect of that offence. The periods mentioned may still be extended under section 65(3) or on appeal under section 65(8) or under section 74(4)(c).
Summary proceedings: period within which prosecution for statutory offence must commence
270.Paragraph 21 modifies section 136(1) of the Criminal Procedure (Scotland) Act 1995 to extend the time limit concerning summary proceedings specified in subsection (1) of that section by 6 months. It has the effect that the time limit for the commencement of proceedings for any statutory offence triable only summarily, unless the enactment fixes a different time limit, is 12 months from the date of the alleged commission of the offence.
Pre-trial and pre-sentence remand period
271.Paragraph 22 modifies section 65 of the Criminal Procedure (Scotland) Act 1995 to extend each of the time limits specified in subsection (4) of that section by 180 days. It has the effect that an accused who is remanded in custody in connection with an offence in solemn proceedings must not be detained for a total period of more than—
260 days, unless within that period an indictment is served on the accused, failing which the accused will be entitled to bail, and
where an indictment has been served on the accused—
290 days, unless a preliminary hearing (High Court cases), or a first diet (Sheriff Court cases) is commenced within that period, failing which the accused will be entitled to bail,
320 days, unless the trial of the case is commenced within that period, failing which the accused will be entitled to bail.
272.The periods mentioned above may still be extended under section 65(5) or on appeal under section 65(8).
273.Sub-paragraph (3) modifies section 147 of the Criminal Procedure (Scotland) Act 1995 to extend the time limit concerning summary proceedings specified in subsection (1) of that section by 90 days. It has the effect that an accused who is remanded in custody charged in connection with an offence in summary proceedings must not be detained for a total period of more than 130 days after the bringing of the complaint in court unless the trial has commenced within that period, failing which the accused must be released and discharged for ever in connection with the offence. The period may still be extended under section 147(2), or on appeal under subsection (3) of that section.
274.Sub-paragraph (4) modifies section 200 of the Criminal Procedure (Scotland) Act 1995 which provides the court with a power to adjourn a case and remand the accused in custody where the accused has been found to have committed an offence punishable by imprisonment. This is to enable inquiry to be made into the accused’s physical or mental condition. Sub-paragraph (4) removes the 3-week time limit for any single adjournment. The effect of this is that the court can adjourn the case for whatever period the court thinks necessary to enable a medical examination and report to be made.
Chapter 2: Adjournment periods
Power of court to adjourn cases
275.Paragraph 23 makes a series of temporary modifications to the Criminal Procedure (Scotland) Act 1995 concerning the power of the court to adjourn cases.
276.Sub-paragraph (2) modifies section 145, which provides the court with a power to adjourn a summary case at first calling for inquiry into the case, or for any other cause it considers reasonable for such period as it considers appropriate. It removes subsection 145(3) which provides that, where the accused has been remanded on bail or ordained to appear, no single period of adjournment shall exceed 28 days. The effect of this is that the court can adjourn a hearing of such a case for such a period as the court considers appropriate, without this limitation.
277.Sub-paragraph (3) modifies section 145A, which provides the court with a power to adjourn a case at first calling in a summary case where the accused is not present, to allow the accused to appear in answer to the complaint, or time for inquiry into the case, or for any other cause the court considers reasonable. It removes section 145A(3) which provides that no single period of adjournment shall exceed 28 days. The effect of this is that the court can adjourn a hearing of such a case for such a period as the court considers appropriate, without this limitation.
Part 6: Proceeds of Crime
278.Paragraph 24 temporarily modifies the Proceeds of Crime Act 2002 to make clear that coronavirus-related reasons are valid reasons for allowing the confiscation-order making process to be postponed.
279.A confiscation order is an order under section 92 of the Proceeds of Crime Act requiring a person convicted of an offence to pay a sum of money representing the person’s benefit from crime. The court can either make a confiscation order before it sentences the person, or it can postpone doing so under section 99 of the Proceeds of Crime Act. Section 99 provides that the process for making a confiscation order cannot, ordinarily, be postponed for more than 2 years beginning from the time that the person is convicted. However, if the court is satisfied that there are exceptional circumstances in a case, it can postpone the process for more than 2 years.
280.It is up to the courts to decide what exceptional circumstances are. Paragraph 24 temporarily inserts a new subsection (4A) into section 99 of the Proceeds of Crime Act to make clear that the direct and indirect effects of coronavirus can constitute exceptional circumstances. An example of a direct effect would be where people involved in the order-making process are too stricken with coronavirus for the process to conclude before the 2 years expire. An example of an indirect effect would be the availability of court diets due to pressures on court timetables as a result of the disruption to court business caused by the pandemic and difficulties in obtaining the necessary court documentation required to progress confiscation hearings.
Part 7: Prisons and young offenders institutions
281.Paragraphs 25 and 26 make provision in similar terms to that found in paragraphs 19 and 20 of schedule 4 of the Coronavirus (Scotland) Act 2020.
282.Associated provision is made by section 57.
Power to release early
283.Under paragraph 25, the Scottish Ministers are given the power to make regulations to release people from prisons and young offenders institutions early. For these purposes, a “
284.Regulations may only be made if the Ministers are satisfied that making them is a necessary and proportionate response to the effects, or anticipated effects, of coronavirus on a prison or on prisons generally. The regulations must be for the purpose of protecting the security and order of the prison concerned or protecting the health, safety and welfare of those accommodated or working in the prison.
285.In addition, there are restrictions upon who can benefit from the regulations. A person may not be released under the regulations more than 180 days earlier than the person would otherwise be due for release. A person is also not to be released under the regulations if the governor of the prison concerned considers the person to pose an immediate risk of harm to another identified person. Further, a person may not be released if the person falls within one of the categories specified in sub-paragraph (5). Those ineligible include:
people who are not serving determinate sentences (for example, a person sentenced to life imprisonment, or where no limit of time has been specified),
people sentenced to an extended sentence for sexual, violent or terrorism offences,
people who have been made subject to a supervised release order in order to protect the public from serious harm upon the person’s release or who are subject to notification requirements under the Sexual Offences Act 2003,
people sentenced for domestic abuse offences, and
people who are in prison for reasons other than having been sentenced, such as those who are awaiting trial or who are being detained ahead of potentially being deported.
286.Regulations under this paragraph may make different provision for different purposes, meaning that the rules can, for example, differentiate between categories of prisoner, types of prison or parts of a prison.
Parliamentary scrutiny and expiry of regulations made under paragraph 25
287.Paragraph 26 makes provision about the parliamentary procedure which applies to the making of regulations under paragraph 25 and about the automatic expiry of any regulations made under that power.
288.Specifically, regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) unless they are made under the bespoke procedure which is provided for by sub-paragraph (3). That procedure is available only where the regulations include a declaration that in the Scottish Ministers’ opinion the regulations need to be made so urgently that parliamentary approval of them in draft cannot be waited for.
289.Where that condition is met, the regulations can be made and come into force immediately under the made-affirmative procedure. They must be laid before the Scottish Parliament as soon as practicable after being made, and will cease to have effect if the Parliament does not approve them within 28 days (excluding days during which the Parliament could not approve the regulations because it is dissolved or in recess for a period of more than 4 days). In addition, the Scottish Ministers must explain their reasons for thinking that the situation is so urgent that the regulations need to be made in accordance with the made-affirmative procedure provided for by sub-paragraph (3).
Parliamentary History
290.The following is a list of the proceedings in the Scottish Parliament on the Bill for this Act and significant documents connected to the Bill published by the Parliament during the Bill’s parliamentary passage.
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