Ministers told to consider removing controversial 'Henry VIII powers' from 'power-grab' bill by MSPs

MSPs have told the Scottish Government to think again about its bid to give itself sweeping powers to amend the law unilaterally, also known as ‘Henry VIII’ powers.

The bill, if passed by MSPs, will give ministers the power to close schools, introduce lockdowns, and shut down hospitality and tourism businesses without having to seek parliamentary approval.

The Covid-19 recovery committee approved the general principles of the bill, but only through a casting vote by the SNP convener.

A Henry VIII power is commonly used to describe a power given to ministers which allows them to amend or repeal provisions of acts of parliament using secondary legislation.

Ministers claim these powers are an “important safeguard” to allow for the effective implementation of public health protection regulations in future emergencies.

However, these powers have been criticised by legal experts such as Dr Andrew Tickell and Professor Alison Britton of Glasgow Caledonian University as being “rightly controversial” due to the fact they “infringe upon the separation of powers, give legislative functions to the executive” and can be passed with “modest” levels of parliamentary scrutiny.

Others, such as the University of Birmingham’s Professor Fiona de Londras, said the power was “extremely broad” and its use should be “strictly exceptional and subject to a very high level of justification”

The Covid-19 recovery committee said that there were “alternative approaches” to the powers sought by the Scottish Government, and called on ministers to look again on whether the provision should be removed entirely or to delay its introduction until a public health emergency.

Scottish Parliament

Opposition MSPs have been heavily critical of the attempt to extend ministerial powers and point to the overwhelming lack of support for the proposals from the public.

The committee’s short survey which asked the public whether public health protection powers should be delegated to ministers saw 81.9 per cent of the more than 1,000 respondents stated they did not support the proposals.

Scottish Conservative member of the committee, Murdo Fraser, said the “power-grab bill” was facing “condemnation” from all sides.

He said: “Over 80 per cent of respondents to the Government’s survey opposed keeping powers to enforce lockdowns, bring in travel restrictions and close schools.

“But SNP MSPs have ignored the overwhelming opposition of the public to press ahead with bringing these extreme powers into law.

“This is a blatant and unnecessary power grab – and anyone who wants a fair, accountable and democratic government should have grave concerns over these proposals.

“The SNP Government have said they’ll consider the committee’s concerns. I urge them to scrap these plans altogether and row back on this shocking overreach.”

The committee has also urged the Scottish Government to bring amendments which state what will be taken into consideration to judge whether a public health threat is “serious and imminent”.

The also called for ministers to provide a written statement prior to the legislation coming into force alongside an impact assessment and for parliament to be formally notified of any review outcome.

Committee convener, SNP MSP Siobhian Brown, said: “The pandemic offered us first hand, an opportunity to stress test our preparedness for and resilience against public health threats. We’ve seen the challenges Scottish Ministers faced in responding to the emerging and evolving situation – and also Parliament’s challenges in holding ministers to account. Now we have the time to take stock.

“That’s why our scrutiny has been so thorough – adopting a cross-parliamentary approach involving four different Committees – in order that no stone be left unturned. It’s imperative that we learn lessons and have legislation in place that is suitably flexible and proportionate to support an effective response to future threats.

“By strengthening the provisions within this Bill and ensuring that improvements are made to key areas, we set ourselves up for a more resilient future.”

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