23 March 2022
1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Coronavirus (Discretionary Compensation for Self-isolation) (Scotland) Act 2022. They do not form part of the Act and have not been endorsed by the Parliament.
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 a part of a section, does not seem to require any explanation or comment, none is given.
3.The Act makes temporary modifications to the Public Health etc. (Scotland) Act 2008 so that health boards have discretion as to whether to pay compensation for self-isolation in connection with coronavirus.
4.The Public Health etc. (Scotland) Act 2008 contains, at section 56, a duty on health boards to compensate people who are asked in writing by the health board to voluntarily quarantine, or to limit their movements or activities. Section 58 of the same Act sets out a further duty on health boards to compensate carers of those people and carers of people subject to an exclusion order, restriction order or quarantine order. A temporary modification of these duties was contained in paragraph 46 of schedule 21 of the Coronavirus Act 2020 which was a response to the situation caused by the coronavirus (COVID-19) pandemic.
5.The modification made by the Coronavirus Act 2020 changed the duty on health boards to pay compensation to a discretionary power to do so, during times that Scotland is in a “transmission control period” by virtue of a statutory declaration made under paragraph 25 of schedule 21 of that Act. The statutory declaration must be revoked by the Scottish Ministers when they are no longer of the view that COVID-19 is a serious and imminent threat to public health, and that the powers in schedule 21 of the Coronavirus Act 2020 remain a suitable means to reduce transmission. If the statutory declaration is revoked, and accordingly the modifications made by paragraph 46 of schedule 21 of the Coronavirus Act 2020 cease to be of effect, at a time when people are still being asked by health boards to voluntarily self-isolate as a result of the COVID-19 pandemic, health boards will be under an obligation to pay compensation to those people and to their carers.
6.The Act has the effect that the duty on health boards to pay compensation is reinstated in respect of requests to self-isolate for reasons other than COVID-19. Where the request is made for COVID-19 related reasons, the Act provides that payment of compensation is discretionary. This modification has effect for an initial period of approximately 6 months from commencement of the Act. This period is subject to amendment by the Scottish Ministers under the regulation-making powers set out in the Act. The period may be reduced, or it may be extended by no more than 6 months at a time.
7.Section 1 modifies section 56 and section 58 of the Public Health etc. (Scotland) Act 2008 (“the 2008 Act”).
8.Section 1(2)(a) of the Act has the effect of making section 56(1) of the 2008 Act subject to section 56(1A). Section 1(2)(b) of the Act provides that section 56 is to have effect as if a subsection (1A) were inserted after subsection (1). Subsection (1A) applies when a request is made to a person under section 56(1) to quarantine, be excluded from entering or remaining in a place, or refrain from certain activities, for a reason relating to coronavirus. Subsection (1A) ensures that in those cases the health board is not under an obligation to pay compensation to the person to whom the request is made. The health board may however choose to pay compensation.
9.Section 1(3)(a) of the Act has the effect of making section 58(2) of the 2008 Act subject to section 58(2A). Section 1(3)(b) of the Act provides that section 58 is to have effect as if a subsection (2A) were inserted after subsection (2). Subsection (2A) applies when a request is made to a person under section 56(1), or a person is subject to any of the types of orders specified in section 58(1)(a), for a reason relating to coronavirus. Subsection (2A) ensures that in those cases the health board is not under an obligation to pay compensation to a carer of the person subject to the order or to whom the request is made. The health board may however choose to pay compensation.
10.Section 2(1) provides that section 1 will expire on 31 October 2022. When section 1 expires, the provisions of sections 56 and 58 of the Public Health etc. (Scotland) Act 2008 will apply without modification.
11.Section 2(2) provides a power for the Scottish Ministers to make regulations making transitional, transitory or saving provision in connection with the expiry of section 1.
12.Section 3 gives the Scottish Ministers the power to change the date of expiry of section 1 by regulations.
13.Section 3(1) allows the Scottish Ministers to move expiry to an earlier date. Section 3(2) allows the Scottish Ministers to move expiry to a later date. Section 3(3) provides that the later date cannot be later than 6 months after the expiry date which applies at the time the regulations are made – whether that is the date set out in the Act, or a date which has been set by a previous set of regulations made under the Act.
14.Section 4 sets out the relevant Parliamentary procedures for regulations made under section 3.
15.Section 4(1) provides that regulations moving expiry to an earlier date are subject to the negative procedure in the Scottish Parliament. Subsection (2) provides that regulations moving expiry to a later date are subject to the affirmative procedure in the Scottish Parliament.
16.Subsection (3) places an obligation on the Scottish Ministers to consult each health board in Scotland, and any other parties that the Scottish Ministers think it is appropriate to consult, before they make regulations under section 3(1), or lay draft regulations under section 3(2).
17.When a draft of regulations to move expiry to a later date is laid before the Scottish Parliament, there is also a duty on the Scottish Ministers, under subsection (4), to lay before the Parliament a statement of their reasons why the regulations should be made.
18.Subsection (5) gives the Scottish Ministers the power to make urgent regulations moving expiry to a later date. If the Scottish Ministers consider that such regulations are required then they are not obliged to consult with health boards or other parties before making them, the affirmative procedure will not apply, and when the regulations are made they will be effective immediately. The regulations must be laid before the Scottish Parliament, along with a statement of the Scottish Ministers’ reasons for making the regulations and for doing so urgently, without using the affirmative procedure. The regulations will cease to have effect 28 days after they are made, unless the Parliament approves them by resolution within that period.
19.By the time the Act comes into force, paragraph 46 of schedule 21 of the Coronavirus Act 2020 (which modifies sections 56 and 58 of the 2008 Act) may have expired. Section 5 provides that if and in so far as it has not already expired, it expires on the day on which the Act comes into force.
20.Section 5(2) provides a power for the Scottish Ministers to make regulations making transitional, transitory or saving provision in connection with the expiry of that paragraph.
21.Section 6 sets out that the Act will come into force on the day after Royal Assent.
22.The following is a list of the proceedings in the Scottish Parliament on the Act for the Act and significant documents connected to the Act published by the Parliament during the Act’s parliamentary passage.
| Proceedings and reports | Reference |
|---|---|
| Bill as introduced – 15 November 2021 | SP Bill 6 - Session 6 (2021) |
| Policy Memorandum | SP Bill 6 - PM Session 6 (2021) |
| Explanatory Notes | SP Bill 6 - EN Session 6 (2021) |
| Financial Memorandum | SP Bill 6 - FM Session 6 (2021) |
| Delegated Powers Memorandum | SP Bill 6 - DPM Session 6 (2021) |
| Stage 1 | |
| Consideration by the Parliament | |
| Stage 1 Debate on the Bill, 20 January 2022 | Col 77 - 99 |
| Motion on financial resolution, 20 January 2022 | Col 100 - 102 |
| Stage 2 | |
| Consideration by the Parliament sitting as a Committee of the whole Parliament | |
| Stage 2 (consideration of amendments and debate) - 27 January 2022 | Col 1 - 4 |
| Marshalled List of amendments for Stage 2 | SP Bill 6 - ML Session 6 (2022) |
| Groupings of amendments for Stage 2 | SP Bill 6 – G Session 6 (2022) |
| Bill as amended at Stage 2 | SP Bill 6 - Session 6 (2022) |
| Revised Explanatory Notes 28 January 2022 | SP Bill 6 - EN Session 6 (2022) |
| Revised Explanatory Notes 31 January 2022 | SP Bill 6 - EN Session 6 (2022) |
| Revised Delegated Powers Memorandum 31 January 2022 | SP Bill 6 - DPM Session 6 (2022) |
| Stage 3 | |
| Consideration by the Parliament | |
| Stage 3 (consideration of amendments) – 09 February 2022 | There were no amendments proposed before the final debate on the bill. |
| Stage 3 (debate) – 09 February 2022 | Col 44 - 62 |
| Bill as passed – 09 February 2022 | SP Bill 6 - Session 6 (2022) |
| Royal Assent | 23 March 2022 |