COVID-19 legislation – where has it come from and how was it scrutinised?

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The legacy report of the COVID-19 committee from Session 5 (March 2021), suggested that the new Parliament should take a look at the COVID-19 emergency legislation to see what worked well, what could be improved, and specifically how the legislative framework should be developed to respond to COVID-19 The legacy report suggested that any review should consider:

“the extent to which our existing public health and civil contingencies legislative framework is fit to deal with pandemics”

as well as:

“the impact of emergency public health measures on people who are more likely to experience social and health inequalities.”

A previous SPICe blog (February 2021) set out the emergency legislation the Scottish Government had used to that point, and for example explained that:

  • There are three main sources of legislation – the two Scottish Coronavirus Acts, the (UK) Coronavirus Act, along with a wide range of other Acts, including the Public Health etc (Scotland) Act 2008.
  • The Scottish Government has previously said it would only use the emergency legislation in a way “proportionate to the challenge”, and for no longer than is needed.
  • The Scottish Government produces a detailed report on the powers every two months (the latest one, the seventh report, was published in June 2021).
  • The last year was a busy time for the Parliament, and by the time of that blog, in February 2021, over 400 Scottish Statutory Instruments (SSIs) had been laid in the Scottish Parliament, of which around a third were related to COVID-19.  

To provide some context, this blog takes a look at the wide range of Parent Acts the Scottish Government has used to create the Scottish Statutory Instruments (the SSIs), as well as the procedures used in the parliament to scrutinise them.  This blog may also provide useful context for scrutiny of the Coronavirus (Extension and Expiry) (Scotland) Bill, introduced on 18 June 2021.

Parent Acts

SPICe and the Office of the Solicitor to the Scottish Parliament have identified 28 separate parent Acts, from which COVID-19 regulations have been created, up to 25 March 2021. As set out below, the majority of these come, unsurprisingly, from the UK and Scottish Coronavirus Acts, as well as the Public Health Scotland Act 2008 (which particularly relate to changes to international travel requirements). A much smaller number arise from the two Scottish Acts.  

More detail is provided below on the parent Acts in the “other” category, with Acts loosely grouped by broad policy area.  These cover a broad range of policy areas, illustrating the spread of activities that the pandemic, and the response to it, has affected.  In some cases, the SSIs refer to more than one Parent Act, and so the total numbers of SSIs do not reconcile directly with those elsewhere in this briefing.  

It is perhaps interesting to note that no regulations have been created to respond to the COVID-19 crisis under the Civil Contingencies Act 2004, given its core role in enabling a response to civil emergencies.   

Procedures used in parliament

It is probably true to say that 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 regularly used the “made affirmative” procedure for emergency legislation.   The table below sets out briefly what this procedure is and how it compares to other procedures.

Instruments made subject to:
How quickly does it come into force?
Which committees consider the SSI?
What sort of parliamentary approval is required?
Standing Orders/ Legislation
Made Affirmative procedure
Immediately
Delegated Powers and Law Reform Committee (DPLRC) and lead committee  
Must be approved by parliament within 28 days or it will cease to remain in force  
Affirmative procedure
On the specified date, but laid before parliament in draft, and so not yet valid and has no legal effect at this point  
DPLRC and lead committee
If approved by parliament, will come into force on specified date, in commencement provision
Negative Procedure
On the specified date, but must be laid before parliament at least 28 days before it is due to come into effect  
DPLRC and lead committee
Will come into force on specified date, unless a motion to annul is approved by parliament within 40 days of it being laid.
Rule 10.4 Standing Orders   Section 28 ILRA
Laid Only
On the specified date, but must be laid before the parliament at least 10 days before it is due to come into force
DPLRC considers.  Lead committee not required to consider.
None.
Rule 10.1.4 Standing Orders   Section 30 ILRA

The numbers of SSIs used under the different procedures up to 25 March 2021 are set out below.  Nearly two in every three COVID-19 SSIs has used the “Made Affirmative” procedure.

Kirsty Lauder, Office of the Solicitor to the Scottish Parliament

Simon Wakefield, SPICe