Covid Scotland: Emergency powers that allow legal changes pre-debate to be examined

Emergency powers which allow legal changes to come into force before they are debated by MSPs are to be examined by a parliamentary committee – as it emerged that they have been used over 100 times since the start of the pandemic.

Committee convener, Stuart McMillan MSP.
Committee convener, Stuart McMillan MSP.

The Scottish Parliament’s Delegated Powers and Law Reform Committee has launched an inquiry looking at the Scottish Government’s use of emergency regulation making powers.

While the legal mechanism known as the “made affirmative procedure", existed before, it was only used a handful of times in a year. However, since the pandemic began, the Scottish Government has used the powers more than 100 times to implement lockdowns or other public health measures to stem the spread of coronavirus.

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It means that legal changes come into force before MSPs have a chance to look at or vote on them, allowing the Government to act quickly. The Parliament does however need to approve the changes within 28 days for the law to stay in force.

The committee hopes to help the Parliament ensure an "appropriate balance” between flexibility for the Government in responding to an emergency situation while still ensuring proper parliamentary scrutiny and oversight.

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The Parliament gave the Scottish Government more ability to use these powers in the Coronavirus Acts, originally passed in April and May 2020. The UK Coronavirus Act also allows for the procedure to be used in the UK Parliament and devolved legislatures.

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Committee convener Stuart McMillan MSP, said: “There are good public health reasons to ensure the Scottish Government can act quickly to keep people safe. The Committee recognises that use of the made affirmative procedure has allowed the Scottish Government to respond quickly to the many challenges presented by the pandemic.

“But our Committee wants to ensure the power to do so is used appropriately and necessarily.”

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He added: “Whenever possible, MSPs should have proper opportunities for oversight, and the public have opportunities to engage and comment on proposals before they come into force. This is a cornerstone of our democracy in Scotland.

“We will consider how the power is currently being used by the Scottish Government and make any recommendations for changes we find necessary.”

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The Scottish Government’s use of the made affirmative procedure for covid instruments is based on powers in four Acts: Scottish Parliament legislation of the Coronavirus (Scotland) Act 2020; Coronavirus (Scotland) (No. 2) Act 2020; Public Health (Scotland) Act 2008 and the Coronavirus Act 2020 under UK Parliament legislation.

In June, Scottish Labour deputy leader Jackie Baillie tabled an amendment to the Coronavirus (Extension and Expiry) (Scotland) Bill to remove powers from the legislation allowing the Scottish Government to extend the powers of two emergency coronavirus acts passed last year until September 2022. However, her amendment was voted down in parliament by 55 votes to 65 and 54 votes to 66 respectively. Covid recovery secretary John Swinney said he would like to keep flexibility within the legislation to allow for an extension, meaning there would not be a need to pass yet another emergency Bill.

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