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In context: coronavirus emergency legislation

Coronavirus - Image credit: Adobe Stock

In context: coronavirus emergency legislation

Unprecedented is a word that is used almost daily in these unprecedented times, but both the UK and Scottish governments have introduced emergency legislation of a kind that was last passed in the Second World War.

Coronavirus (Scotland) Bill

In the fastest turnaround for a bill in Scottish parliamentary history, the Coronavirus (Scotland) Bill was introduced to the Scottish Parliament on 31 March and all three stages were passed in a single day on 1 April. The bill introduces temporary measures to cover the expected period of disruption from coronavirus for six months until 30 September. If necessary, the measures can be extended for two further periods of six months, although they can also be cut short if no longer needed.

What’s in it?

The bill covers a number of areas from criminal justice to licensing to renting property. It offers more protection for tenants, with the period before a tenant can be evicted for rent arrears increased to six months, although tenants will still be able to be evicted in three months for criminal or antisocial behaviour or if the landlord wants to move into the property. For commercial tenants where the landlord has served notice for rent arrears, it extends the time by which the money must be paid from 14 days to 14 weeks.

For those in serious debt who are considering a formal debt solution such as bankruptcy, it allows them to apply for a six-month breathing space during which creditors must hold off on taking enforcement action such as seizing money from bank accounts.

Another key provision of the bill is the release of prisoners to ease pressure on the prison system. Certain categories of offender are excluded, such as those serving life sentences, those imprisoned for terrorist offences and anyone who is thought to pose a threat to the community. It also allows for the possibility of some court cases being conducted via video and audio link and extends the limit on when cases must be brought to court by three months for summary cases and six months for solemn cases.

The bill allows local authorities to make decisions for the benefit of a vulnerable adult even if that adult has a welfare attorney to make decisions for them, extends planning permission by a year if it is about to expire within six months and allows licensing hearings to be conducted remotely. It also makes some amendments around timescales in the children’s hearings system.

Jury trials have been a feature in Scotland since the reign of Alexander II in 1230. For almost 800 years people in Scotland who are victims or witnesses have been able to give their evidence to a jury, and for the accused to know that their peers are judging them. This is not something to abandon when we can adapt to meet the challenge in other ways – Lib Dem MSP Alex Cole-Hamilton

Anything controversial?

Oh yes! The Scottish Government had originally proposed suspending jury trials for solemn cases (the most serious crimes) and simply having a judge preside over the trial instead, since it would put jury members at risk of coronavirus being in court. However, following an outcry from the legal profession, opposition parties and even some of his own party, justice secretary Humza Yousaf announced that the government would drop that part of the bill. He said he will discuss with the judiciary, legal profession, victims and opposition parties to find a “practical, achievable solution”. Separate legislation around trials will be brought back at the first sitting of parliament after Easter on 21 April.

Another controversial proposal was extending the period of time for public bodies to respond to freedom of information (FOI) requests from the standard 20 working days (one month) to 60 working days (three months) and allowing public bodies to extend this by another 40 working days if it is not “reasonably practicable” to respond within the time period, plus the same extensions for review of the request, making a possible 200 working days for a response. The opposition tried to put through several amendments to this, but only one was passed, from Green MSP Ross Greer, removing the 40-day extension from the response and from the review, making the total maximum turnaround time for an FOI request 120 working days or just under six months.

Anything else?

Also controversial was the fact that there was a reduced number of MSPs in the chamber due to social distancing requirements and some MSPs self-isolating, but the reduction was not proportionate across parties, leaving the SNP and the opposition parties with equal numbers of MSPs, despite the SNP being a minority government. This meant that it was impossible for the opposition parties to get any amendments through without support from at least one SNP MSP, with the presiding officer casting a deciding vote against any amendment where there was a tie.

What’s going on at UK level?

The UK Government’s emergency coronavirus legislation, now the Coronavirus Act 2020, was passed by MPs on 23 March and approved by the Lords on 25 March. This included wide-ranging changes, from allowing retired NHS staff to return to work to giving statutory sick pay from day one and giving the police and immigration services new quarantine powers. It also gives the UK Government power to ban events or public gatherings, close schools and childcare facilities and postpone local elections. Initially Boris Johnson had intended the act to be in place for two years, but under pressure from opposition parties, he reduced it to six months with the possibility of renewal.

What about elsewhere?

Two countries have been held up in particular as being good and bad examples of legislative response to coronavirus. Last week Hungary passed laws that effectively create a dictatorship, giving president Victor Orbán power to rule by decree indefinitely with no elections and to jail anyone publishing false information for up to five years, which it is feared could be used against journalists criticising the government. New Zealand, on the other hand, has been praised for its handling of the situation, with an oversight group with a majority of opposition MPs and FOI issues dealt with simply through a statement from the ombudsman that they will take the circumstances into account regarding response times rather than changes to legislation.

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