Statement by Scotland Against Criminalising Communities, 4 April 2020.
The Coronavirus (Scotland) Act received royal assent on 6 April. It contains a wide range of emergency powers related to the coronavirus pandemic. The Act contains contains welcome measures that, in effect, will halt evictions in Scotland. It contains other measures that cause us serious concern.
Changes to the right to information concern us because they are damaging to democracy and potentially undermine the capacity of civil society to develop and press for an effective response to the coronavirus emergency. Measures to allow the early release of prisoners are welcome in themselves, but cause us concern because the Scottish Government does not seem to applying its new powers with the energy the situation requires. And we remain gravely concerned over Scottish Government proposals, potentially still in the pipeline, to abolish jury trials.
- We welcome the Scottish Government's decision not to include its proposal for the abolition of jury trials the legislation. It says it will return to the issue after the parliamentary recess, and will introduce a separate emergency bill dealing with jury trials and perhaps covering other matters as well. Changes to the way trials are conducted are necessary. But there must be no impairment of the right to trial by jury for serious charges.
- The section of the Act (Shedule 6, Part 2) dealing with freedom of information must be repealed through further emergency legislation. This section extends the time limits for freedom of information so much that, if public bodies take full advantage of the new limits, the rights created by the Freedom of Information (Scotland) Act will be practically worthless. The need for timely information is greater now than it has ever been.
Where public bodies are genuinely and exceptionally unable to meet the pre-emergency statutory time limits, this could be dealt through a flexible approach to enforcement by the Information Commissioner, without any need for new legislation. The enforcement mechanism created by FOISA is potentially powerful and could result in the Court of Session holding a public body to be in contempt of court. But this process is not easily engaged and it is difficult to believe that, in the absence of emergency legislation, public bodies would have been at risk of an avalanche of such rulings. This section of the Coronavirus (Scotland) Act looks not so much like a response to necessity, but rather an attempt to greenlight widespread disregard for any obligation to answer awkward questions.
- Scottish Ministers must make energetic use of the powers given to them in the Act (Schedule 4, Part 8) to rapidly and radically cut the prison population. The incarceration rate in Scotland prior to the pandemic was higher than in England and most other western European countries. We don't need to keep all these people in infection-prone, under-staffed prisons. Scottish Ministers need to act before tragedy and disaster take hold of Scottish prisons. They cannot afford to wait until disaster begins to unfold.
- The clause in the Act (Schedule 4, para 20(4)(g)) that excludes from release prisoners who are "the subject of proceedings under the Extradition Act 2003" must be repealed through further emergency legislation. The only plausible reason for this clause is to avoid embarrassing the UK Government, who need a similar clause in order to keep Julian Assange behind bars.
- The powers in the Act allowing for the early release of prisoners should be supplemented by further emergency legislation allowing Scottish Ministers, if there is an urgent necessity, to order the release of remand prisoners awaiting trial on any charges except those excluded from the powers granted under the bill for the release of convicted prisoners. While respecting the role of judges, in non-urgent cases, in deciding whether bail applications should be reviewed in the light of the pandemic, this would give Scottish Ministers the power to get remand prisoners out of jail in an emergency.
We call on MSPs, campaigning groups, trade unions and other organisations to press for the five steps set out above.
The legislation in brief
The Law Society of Scotland has summarised the Coronavirus (Scotland) Act as follows:
The Act contains a wide range of emergency powers and measures, including:
- protection of renters from eviction during the outbreak by adjusting the notice periods for the majority of repossession grounds across both private and social rented sectors;
- additional protection for debtors through temporary extension of certain moratoriums on diligence;
- provision to make temporary changes to legislation in relation to children and vulnerable adults;
- provision to make adjustments to criminal procedure and to other aspects of the justice system, though the proposed suspension of jury trials was dropped from the bill following widespread opposition and further proposals will be brought before Holyrood;
- temporary modifications of legislation in relation to alcohol licensing;
- provision in relation to the functions of public bodies including various changes relating to non-alcohol licensing, local authority meetings and the provision of accounts;
- a range of other provisions including measures relating to social security, irritancy clauses in commercial leases, planning, registration of deeds, changes to the Anatomy Act 1984, changes to the scrutiny of secondary legislation and provisions relating to business improvement districts.
Some provisions, including in the justice sphere, depend on ministers making regulations, which they can only do if satisfied that it is necessary and proportionate in response to the actual or anticipated effects of COVID-19.
...Most of the emergency measures in the Act will expire automatically six months after they come into force. The Scottish Parliament may extend the measures for two further periods of six months, giving a maximum duration of 18 months.
The Scottish Government will provide a report to the Parliament every two months about the use of these emergency powers. It has also published guidance for public bodies on the key changes made by the Act.
The legislation in full
Statement on the Coronavirus (Scotland) Bill by SACC Chair, Richard Haley