A summary of the points that might be of interest in relation to which provisions of the emergency legislation are being continued or expired

The Scottish Parliament has passed the Coronavirus (Extension and Expiry) (Scotland) Bill under the emergency procedure, keeping in force some of the emergency provisions passed in 2020 at least until 31 March 2022 (with the possibility of extension to 30 September 2022).

A summary follows of the provisions that might be of interest in relation to what is being continued or expired (from 30 September 2021).

Legal aid

Ministers recognise that it would not be appropriate at this stage to remove the enhanced interim fee arrangements, and are continuing the provisions enabling reduction of the level of scrutiny required, removal of conditions for counsel to be able to apply – and enhanced recovery powers in the event of overpayment.

Meetings in public

Among amendments successfully pressed on the Government during the bill’s passage, the public can no longer be excluded from meetings of local authorities and licensing boards on COVID-related grounds.

Children’s hearings

Special measures regarding children’s hearings and social work will expire, but transitional arrangements will enable orders granted under the 2020 Act to continue to operate.

Planning permission

Planning permissions, listed building consents and conservation area consents that were due to expire while coronavirus restrictions were in place will be further extended.

Land registration

Digital registration in the Land Register and Register of Sasines, along with the Register of Judgments and Register of Inhibitions, will continue. The policy memorandum states that if it did not, Registers of Scotland and the conveyancing profession “would have to significantly amend their operating procedures which would incur additional costs and likely be viewed as a backwards step by stakeholders”.

Tenancies

Notice periods landlords require to give their tenants will remain at six months, except for criminal or antisocial behaviour, and all eviction grounds for private tenancies will continue to be discretionary rather than mandatory.

Pre-action requirements, such as reasonable efforts to work with tenants to manage rent arrears, will continue for private landlords considering eviction for rent arrears accrued during the COVID-19 period.

The provision allowing students in halls of residence etc to end their lease early with seven days’ notice for a COVID reason is being expired; but a separate provision allowing 28 days’ notice will continue.

Landlords of student accommodation whose properties are empty due to COVID will continue to be exempt from council tax while their properties are unoccupied.

Irritancies in leases

The bill originally proposed to expire the provision allowing commercial tenants 14 weeks’ rather than 14 days’ notice of intended termination for non-payment of rent, but ministers accepted business representations that it should continue.

Diligence and bankruptcy

Debtors will no longer be able to apply for a moratorium on diligence more than once in a 12 month period. However, where granted, a moratorium will continue to run for six months rather than six weeks, as ministers anticipate increased demand for debt advice and solutions. They consider this will balance the interests of debtors and creditors.

Some provisions not already made permanent by the Bankruptcy (Miscellaneous Provisions) (Scotland) Regulations 2021 are continued. These cover electronic service; the £10,000 debt threshold before a creditor can apply for bankruptcy; and virtual meetings of creditors.

Civil courts

Provisions enabling business to be conducted remotely are regarded as necessary to enable the justice system to continue without serious adverse effect, and are extended. However the Government is aware of the concerns over the use of remote hearings in delivering justice and has commissioned three short research projects into their effectiveness.

Criminal justice

Extended time limits in criminal proceedings are continued, including the 40 days (summary) and 140 days (solemn) within which a remanded accused must be brought to trial, without an individual extension. Despite the significant growth in the number of remand prisoners, ministers state that “the need for flexibility in time limits clearly remains and is likely to do so for a considerable time”.

Some extended time limits for adjournment of summary proceedings are also continued, including adjournment at first calling.

Provisions enabling prisoner custody officers to carry out escort functions within police stations to enable remote court appearances will remain – and are likely to for the foreseeable future.

Also to be kept in force are:

  • the temporary increases in the levels of fiscal fine available to prosecutors;
  • the court’s power to extend an undertaking to appear, where it appears that a failure to appear is attributable to a COVID reason;
  • Scotland-wide jurisdiction for sheriffs dealing with first appearances from police custody;
  • provisions preventing disadvantage if an individual is unable to pay a confiscation order on time for COVID reasons;
  • the extended time of 12 months for completing community payback orders remains, as does ministers’ power to make regulations varying or revoking requirements imposed in such orders –but not in relation to drug treatment and testing orders (it is not thought necessary to continue other provisions relating to community orders);
  • provisions enabling greater flexibility in Parole Board hearings; and
  • ministers’ powers to provide for the early release of certain prisoners in order to protect the security and good order of the prison.

It was also proposed to extend the COVID-related addition to the circumstances in which hearsay evidence may be led in criminal trials, but MSPs defeated the Government to remove this.

Documents

The provision removing any requirement for lawyers or notaries public to be physically present to witness the signing of a document, or the taking of an oath or affirmation, is continued.

Documents normally required to be displayed on the walls of court can continue to be published online.

The Author

Peter Nicholson, editor

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