In response to the pandemic, the Scottish Government has used powers which affect everyone in the country, in many deeply felt and significant ways. In the debate on the Legislative Consent Memorandum for the UK Coronavirus Bill, the Convener of the Finance and Constitution Committee highlighted the extent of the emergency powers (24 March 2020):
“We all know that Governments would normally seek such powers only in times of war. We also know that, right now, we are in a war against an unseen and deadly enemy.”
Whilst the government has explicitly aimed to use such powers in way that is “proportionate to the challenge”, and to “only last as long as is required” (for example on 1 April 2020), parliaments also have an essential role in their scrutiny (as for example recently flagged up by a former Permanent Secretary of the UK government’s legal department).
The powers being used by the Scottish Government come from three main sources:
- The UK Coronavirus Act 2020 (referred to as “the UK Act”).
- The two Scottish Coronavirus Acts – the Coronavirus (Scotland) Act and the Coronavirus (Scotland) (No 2) Act.
- A wide range of other Acts, including the Public Health etc (Scotland) Act 2008.
There’s a detailed run through of these powers, updated every two months by the Scottish Government. The fifth such two-monthly report (referred to as the “fifth report” from here on), was published on 11 February 2021, and set out the latest on the legislation.
This blog takes a high-level look at the emergency powers in Scotland and plans for their expiry and renewal.
This is this is a longer blog than normal, we have added a popout contents page below, to help with navigation.
The three main sources of the emergency powers
The three main sources of the powers being used by the Scottish Government are explained below.
1. Devolved powers under the UK Act
Section 49 of the UK Act introduces schedule 19, which gives Scottish Ministers the powers to make regulations:
imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health
This means protecting the community from infectious diseases, contamination or other such hazards, and these public health regulations include some of the most high-profile measures. For example, they include restricting the operation of retail and hospitality businesses, restricting public gatherings, requiring the use of face coverings, and limiting travel between parts of the country.
Other (devolved) measures under the UK Act include powers relating to registration of health professionals, local authorities’ requirements to assess needs, the registration of deaths, powers relating to potentially infectious persons, financial assistance to industry, and the postponement of elections.
More details on the Legislative Consent Memorandum can be seen in the papers for the Finance and Constitution committee (24 March 2020).
2. Powers under the two Scottish Acts
The two Scottish Coronavirus Acts both contain a wide range of powers.
- The first Scottish Act includes measures relating to evictions, protection of children and vulnerable adults, the conduct of the courts, release of prisoners, licensing, local authority meetings, social security and freedom of information.
- The second Scottish Act wrapped up an equally wide range of issues, including student tenancies, carers allowance and support for social care, mental health, bankruptcy, care homes, marriage and civil partnerships, non-domestic rates relief, traffic regulation and again freedom of information.
3. Powers under a wide range of other Acts
Beyond the specific coronavirus acts, there’s also a wide array of powers that flow from other legislation. In their fifth (two-monthly) report the government includes information on a total of 79 regulations which do not stem from either the UK or Scottish Coronavirus Acts but do come into the category of being “coronavirus related” (and so are in scope for reporting under section 14 of the second Scottish Act).
These include a huge range of measures including non-domestic rates relief, NHS charges for overseas visitors, carers allowance, single use plastic bags, prisoners and young offenders, education appeals, town planning, childcare commitments, and homeless persons. They also include the international travel regulations (under the Public Health etc (Scotland) Act 2008) which have introduced requirements for people to isolate upon their arrival in Scotland, and most recently, requirements to isolate in managed accommodation.
A busy time for the parliament
COVID-19 legislation has featured heavily in parliamentary business over the last year. From 1 March 2020 until 22 February 2021, a total of 401 Instruments were laid in the Scottish Parliament. 134 of these (or one in every three) were COVID related (Source: Delegated Powers and Law Reform Committee, information provided to SPICe).
New procedures to keep pace with the virus
Up until recent times, the procedures for parliamentary scrutiny have not generally been formulated with a rapidly changing pandemic in mind. Since April 2020, the Scottish Government has been making emergency legislation using the “made affirmative” procedure.
Under the made affirmative procedure, an instrument comes into force automatically, and can remain in force for 28 days starting on the date on which it was made. Committees carry out their scrutiny following the instrument being laid before Parliament. If the Parliament does not approve the instrument within 28 days, it will no longer remain in force. The made affirmative procedure may only be used where Scottish Ministers consider that the legislation must be made urgently, as clearly, under this process, the Parliament would have no opportunity to consider measures before they take effect.
The extensive use of the made affirmative procedure from the period 1 March 2020 to 22 February 2021 is set out in the chart below, which shows a breakdown of the 134 COVID-related instruments:
(Source: Delegated Powers and Law Reform Committee, information provided to SPICe)
In comparison, only three made affirmative instruments were laid in the same period 2019-2020
However in November 2020, the Parliament and the Scottish Government agreed to revise the approach to scrutiny of emergency regulations, and this now includes allowing Members the opportunity to scrutinise some draft regulations before they come into effect.
The new process follows a weekly cycle: On Tuesday the government announces any changes it intends to make to restrictions in a ministerial statement to the Scottish Parliament. On Wednesday it publishes a policy statement and draft regulations. On Thursday the COVID-19 Committee reviews any proposed changes to restrictions, after which the Parliament may further scrutinise draft proposals in the chamber. On Friday the Scottish Government lays secondary legislation giving effect to new restrictions.
SPICe has recently produced a blog setting out how the Parliament has adapted to ensure that it can operate safely, whilst continuing to function as a legislature at a time of national emergency.
Are the powers being used “only as long as required”? A look at expiry and renewal
As well as considering whether the powers being used are proportionate, the Parliament also needs to test the Scottish Government’s assertion that the powers are only being used for as long as required.
Firstly, it is worth flagging up that some powers have already been expired, including, as the Cabinet Secretary reported (11 February 2020), the following examples:
- Expiry of provisions relating to adults with incapacity that removed the requirement on a local authority to consult the adult and interested parties in certain defined and exceptional circumstances.
- Suspension of stop-the-clock provisions for guardianship orders and certificates for medical treatment of adults lacking capacity.
- Suspension of the muirburn provision to allow the muirburn season to commence from October 2020.
- Expiry of the provision extending the maximum timescales for which children could be kept in secure accommodation without the authority of a children’s hearing or a sheriff.
Beyond those examples, it is useful to look more broadly at what powers are due to expire when, and potentially, when they could be renewed.
1. The UK Act
Section 89 of the UK Act sets up a sunset provision, meaning the Act expires two years after the day it was passed, on 25 March 2022, though this is subject to some exceptions which are set out in the legislation. The Act allows for some provisions to be suspended (and then revived if needed), whilst certain provisions can also be permanently expired before the sunset deadline, and some provisions can be extended beyond the sunset period.
The Act requires the House of Commons to undertake a review of its non-devolved provisions every six months. On the last occasion, on 30 September 2020, the Commons debated a motion “that the temporary provisions of the Coronavirus Act 2020 should not yet expire”.
The devolved provisions in the UK Act, including Scotland’s wide-ranging public health regulations from Schedule 19, are not in scope of the House of Commons six-month reviews. However, their status, operation and necessity are nevertheless covered in the Scottish Government’s two-monthly reports to the Scottish Parliament. It is also worth noting that the “local levels” regulations are also subject to a three weekly review.
3. The two Scottish Acts
However, the Acts set out that Part 1 of each of the Scottish Acts could only be extended in their entirety and not on a provision by provision basis. So, on 24 August 2020, two sets of regulations were published – the extension regulations, and the expiry regulations – with both sets of regulations coming into force on 29 September 2020. The extension regulations were also accompanied by a Statement of Reasons.
The extension regulations extended the expiry date of Part 1 of both Scottish Acts to 31 March 2021. The expiry regulations, as their name would suggest, expired provisions of those Acts which were no longer required beyond 29 September 2020.
The Scottish Government now wishes to extend most of the powers under the Scottish Acts for a further six months to 30 September 2021 and has laid a new set of extension regulations and expiry regulations, alongside a new Statement of Reasons (24 February 2021).
However, this extension will not apply to all provisions in the Acts which are currently in place. The Scottish Government says it has judged that seven measures will no longer be needed and proposes they be expired on 30 March 2021, including those related to child assessment orders, the Land Register, the Anatomy Act, muirburn, fixed penalty notices for 16-18 year olds, low emission zones, and traffic regulation. Some regulations on marriages and civil partnerships are also suspended.
Under the terms of the two Acts, this is the Scottish Government’s last opportunity to extend the regulations.
3. Other Scottish Acts
Section 14 of the second Scottish Act requires Scottish Ministers to report on all SSIs made by Scottish Ministers where the primary purposes relate to coronavirus. Table 5 in section 8 of the government’s two monthly report identifies 79 SSIs which are in scope for reporting under section 14 of the second Scottish Act.
These SSIs have a variety of purposes, are based on a range of different sources of primary legislation, and they also come with a wide range of expiry dates. Some are open-ended, some are due to expire in March or April 2021, and some are set to expire when Part 1 of the relevant Scottish Act expires. The largest single group of regulations relate to the updates of the restrictions and requirements relating to international travel; and in this case these were each set to expire 12 months from the commencement date of the first set of these restrictions (from 8 June 2020). The International Travel Regulations are also subject to a four weekly review requirement.
What is next?
In early March 2021, the COVID-19 Committee will consider the Scottish Government’s latest review of the regulations, as well as the results of the COVID-19 Committee’s consultation. It will also consider the proposal for another 6-month roll-over of the many of the emergency powers in the Scottish Acts. As the Cabinet Secretary reported to parliament (11 February 2021):
it seems unavoidable that many of the provisions of the acts will be required after 31 March, to enable us to deal with the on-going effects of the pandemic
It is, however, worth noting that, as indicated above, many of the most significant restrictions that people feel in their everyday lives flow from Schedule 19 of the United Kingdom Coronavirus Act, and the provisions to allow them to continue will mostly remain in place until March 2022. Having said that, the Cabinet Secretary also said in relation to these (11 February 2020) that:
I believe that it would be appropriate to consider the on-going necessity of those provisions alongside consideration of the Scottish acts. Therefore, the Scottish Government is also considering whether any of those provisions should be suspended or expired at 31 March 2021.
Finally, one area of concern, raised by the Convener of the COVID-19 Committee (11 February 2020), is a potential gap in scrutiny arrangements, during the Scottish Parliament election campaign period, and in the early days of the new parliament when, for example, committees are being established.