Covid Scotland: Emergency powers used for lockdowns ‘should not be the norm’

Emergency powers used by the Scottish Government to implement urgent regulations such as snap lockdowns without parliamentary consent should “not be the norm” and the government should publish more evidence as to why the measures are required, a committee has warned.

In a report following an investigation into the use of the “made affirmative” procedure during the coronavirus pandemic, the Delegated Powers and Law Reform Committee said that he government should publish its criteria for determining whether a situation is suitably urgent – and also, in future, provide a written statement detailing why any such measures need to be brought in urgently.

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 140 times to implement lockdowns or other public health measures to stem the spread of coronavirus.

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 Scottish Government has used the "made affirmative" procedure more than 140 times during the pandemic.

This is unlike other types of secondary legislation which the Parliament considers before the changes become law.

The report stated: “The Committee readily acknowledges that the Government did not enter 2020 with the desire to use the made affirmative procedure over 146 times in 22 months. As the Deputy First Minister reflected in his evidence, urgent intervention was at numerous times necessitated by events that had not been envisaged even a few days earlier.”

It added: “While the made affirmative procedure has been a vital tool in the handling of the pandemic, the Committee is keenly aware of its downsides and does not wish its use to become the norm. The recommendations in this report are not to remove this important tool but rather to reflect on how the procedure has been used during the pandemic and make proposals for how the Parliament responds to its potential use in the future.”

The Scottish Government has been contacted for comment.

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