The Health Protection (Coronavirus) (Pre-Departure Testing and Operator Liability) (Scotland) Regulations 2021

Amendment of the International Travel Regulations

3.—(1) The International Travel Regulations are amended in accordance with paragraphs (2) to (10).

(2) In regulation 2 (interpretation)—

(a) in the definition of “child” for “16” substitute “18”,

(b) after the definition of “Passenger Locator Form”, insert—

““qualifying test” means a test that is a qualifying test for the purposes of regulation 5A,”.

(3) After regulation 5 (passenger information: offences and penalties), insert—

“PART 2A Pre-Departure Testing

Requirement to possess notification of negative test result

5A.— (1) A person who arrives in Scotland having begun their journey outside the common travel area must possess on arrival valid notification of a negative result from a qualifying test taken by that person.

(2) A person who is travelling with a child aged 11 or over and for whom they have responsibility must, on their arrival in Scotland, possess valid notification of a negative result from a qualifying test taken by that child.

(3) A person who possesses valid notification of a negative result from a qualifying test must produce that notification, physically or digitally, if requested to do so by a constable or an immigration officer.

(4) The following are not required to comply with this regulation—

(a) a person who is a child (without prejudice to paragraph (2)),

(b) a person described in paragraph 2, 3, 4, 4B, 4C, 4D, 4E, 7, 12, or 30 of schedule 2,

(c) a person described in paragraph 4(1) of schedule 2A(1).

(5) For the purposes of this regulation—

(a) a test is a qualifying test if it complies with paragraph 1 of schedule 2A,

(b) a notification of a negative result is valid if it includes the information specified in paragraph 2 of schedule 2A.

Pre-Departure testing: offences and penalties

5B.— (1) A person who contravenes a requirement in regulation 5A commits an offence.

(2) It is a defence to a charge of committing an offence under paragraph (1) to show that the person, in the circumstances, had a reasonable excuse.

(3) For the purposes of paragraph (2), reasonable excuses include, in particular where—

(a) a person was medically unfit to provide a sample for a qualifying test and possessed a document, in English or accompanied by a certified English translation, signed by a medical practitioner entitled to practise in the country or territory in which that practitioner was based, to that effect,

(b) it was not reasonably practicable for a person to obtain a qualifying test due to a disability,

(c) a person required medical treatment with such urgency that obtaining a qualifying test was not reasonably practicable,

(d) a person contracted coronavirus and required emergency medical treatment,

(e) a person was accompanying, in order to provide support, whether medical or otherwise, a person described in sub-paragraph (c) or (d) where it was not reasonably practicable for the accompanying person to obtain a qualifying test,

(f) a person began their journey to Scotland in a country or territory in which a qualifying test was not available to the public, with or without payment, or in which it was not reasonably practicable for a person to obtain a qualifying test due to a lack of reasonable access to a qualifying test or testing facility and it was not reasonably practicable for them to obtain a qualifying test in their last point of departure if this was different to where they began their journey,

(g) the time it has taken a person to travel from the country or territory where they began their journey to the country or territory of their last point of departure prior to arriving in Scotland meant that it was not reasonably practicable for them to meet the requirement in paragraph 1(c) of Schedule 2A, and it was not reasonably practicable for them to obtain a qualifying test in their last point of departure.

(4) A person does not commit an offence where they contravene a requirement in regulation 5A if they reasonably believed at the time of the contravention that the notification of a negative result was valid and from a qualifying test.

(5) A person who commits an offence under this regulation is liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.”.

(4) In regulation 6 (requirement for travellers or others to stay in specified premises), after paragraph (1) insert—

“(1ZA) Paragraph (2) also applies to a person who—

(a) is not otherwise required to comply with that requirement (by virtue of regulation 6(1) or regulation 7), and

(b) either—

(i) contravenes a requirement in regulation 5A(1), or

(ii) is a child in respect of whom the person responsible contravenes a requirement in regulation 5A(2).”.

(5) In regulation 7(1) (persons not required to comply with regulation 6), for “Subject to paragraph (2)” substitute “Subject to regulation 6(1ZA) and paragraph (2) of this regulation”.

(6) After regulation 10 (penalties for offences under regulation 9) insert the heading—

“PART 4A

Fixed Penalty Notices”

(7) In regulation 11(2) (fixed penalty notices), for sub-paragraph (a) substitute—

“(a) has committed—

(i) an information offence,

(ii) an offence under regulation 5B(1) or

(iii) an offence under regulation 9(4), and”.

(8) In regulation 12(4) (fixed penalty notices – penalty amounts)—

(a) before sub-paragraph (a) insert—

“(za) regulation 5B(1),”,

(b) in paragraph (d) before “Part 4” insert “Part 2A or”.

(9) In paragraph 4C of schedule 2 (person not required to comply with regulations 3 or 6), omit “in accordance with the Maritime Labour Convention, 2006 or the Work in Fishing Convention 2007”.

(10) After schedule 2, insert—

Regulation 5A

“SCHEDULE 2A Testing before arrival in Scotland

1.   A test complies with this paragraph if—

(a) it is a test for the detection of coronavirus undertaken using a device which the manufacturer states has—

(i) a sensitivity of at least 80%,

(ii) a specificity of at least 97%, and

(iii) a limit of detection of less than or equal to 100,000 SARS-CoV-2 copies per millilitre,

(b) it is not a test provided or administered under the National Health Service (Scotland) Act 1978(2), the National Health Service Act 2006(3), the National Health Services (Wales) Act 2006(4), or the Health and Personal Social Services (Northern Ireland) Order 1972(5), and

(c) the test sample is taken from the person no more than 3 days before—

(i) in the case of that person travelling to Scotland on a commercial transport service, the service’s scheduled time of departure, or

(ii) in any other case, the actual time of departure of the vessel or aircraft on which that person is travelling to Scotland.

2.   Notification of a negative test result must include, in English, French or Spanish, the following information—

(a) the name of the person from whom the sample was taken,

(b) that person’s date of birth or age,

(c) the negative result of the test,

(d) the date the test sample was collected or received by the test provider,

(e) the name of the test provider and information sufficient to contact that provider,

(f) the name of the device that was used for the test.

3.   In this schedule,

“device” means an in vitro diagnostic medical device within the meaning given in regulation 2(1) of the Medical Devices Regulations 2002(6),

“sensitivity”, in relation to a device, means how often the device correctly generates a positive result, and

“specificity”, in relation to a device, means how often the device correctly generates a negative result.

4.— (1) The persons referred to in regulation 5A(4)(c) (and not required to comply with that regulation) are—

(a) a person (“P”) described in—

(i) paragraph 14(1)(b) of schedule 2 where, prior to P’s departure to the United Kingdom, the relevant Department or the Scottish Ministers have certified that they meet this description and are not required to comply with regulation 5A, or

(ii) paragraph 14A of schedule 2 where, prior to P’s departure to the United Kingdom, the relevant Department or the Scottish Ministers have also certified that they are not required to comply with regulation 5A,

(b) a Crown servant or government contractor (“C”) who is required to undertake essential policing or essential government work in the United Kingdom or is returning from conducting such work outside the United Kingdom where, prior to C’s departure to the United Kingdom, the relevant Department or the Scottish Ministers have certified that they meet this description and are not required to comply with regulation 5A,

(c) a representative (“R”) of a foreign country or territory, or of the government of a British overseas territory, travelling to the United Kingdom to conduct official business with the United Kingdom where, prior to R’s departure to the United Kingdom—

(i) the relevant head of the mission, consular post, or office representing a foreign territory in the United Kingdom, or a Governor of a British overseas territory (as the case may be), or a person acting on their authority, confirms in writing to the Foreign, Commonwealth and Development Office that R is required to undertake work which is essential to the foreign country represented by the mission or consular post, the foreign territory represented by the office or the British overseas territory, and

(ii) the Foreign, Commonwealth and Development Office has then confirmed in writing to the person giving the notification in sub-head (i) that—

(aa) it has received that confirmation, and

(bb) R is travelling to the United Kingdom to conduct official business with the United Kingdom and is not required to comply with the requirements of regulation 5A,

(d) a worker with specialist technical skills, where those specialist technical skills are required for emergency works or services (including commissioning, maintenance, and repairs and safety checks) to ensure the continued production, supply, movement, manufacture, storage or preservation of goods or services, where they have travelled to the United Kingdom in the course of their work or otherwise to commence or resume their work.

(2) In sub-paragraph (1)—

“consular post” has the meaning given in paragraph 1(3) of schedule 2, and

“Crown servant”, “essential government work”, “essential policing” and “government contractor” have the meanings given in paragraph 14(2) of schedule 2.”.

(1)

Schedule 2A is inserted by paragraph (7) of this Regulation below.

(2)

1978 c.29.

(3)

2006 c.41.

(4)

2006 c.42.

(5)

1972 No. 1265 (N.I. 14).

(6)

S.I. 2002/618, to which there are amendments not relevant to these Regulations.