Covid Scotland: John Swinney defends Scottish Government's use of emergency powers during pandemic

Deputy First Minister John Swinney has defended the Scottish Government’s use of emergency powers which allow legal changes to come into force before they are debated by MSPs.

Speaking to Holyrood’s delegated powers and law reform committee, Mr Swinney said he “did not recognise” a problem with the Government’s use of the legislation during the Covid-19 pandemic.

MSP Graham Simpson pointed out the “made affirmative procedure” had been used nine times before March 20, 2020 and 132 times since then, with the vast majority of those used for Covid-related regulations.

He claimed that it meant laws could be made “with the flick of a ministerial pen”.

Tory MSP Craig Hoy, who also sits on the committee, said the use of the power could be perceived to be “an example of the Government getting into bad law-making habits here where regulations are published too late and with undue scrutiny”.


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Anything that comes into law through the made affirmative procedure needs to be approved by the Scottish Parliament within 28 days retrospectively.

Mr Swinney described their criticisms as a "ludicrous line of argument”.

He pointed out that pre-March 2020, the Scottish Parliament had never faced a global pandemic. He said the made affirmative procedures, which have given the green light to controversial measures such as the introduction of vaccine passports, were required “because of the necessity of acting quickly and swiftly in a public health emergency”.

However, in a statement to the committee Mr Swinney said he recognised concerns expressed over the use of the power and said the Government would not use the procedure as a normal approach to legislation.


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Mr Simpson said: “You've been ramming through laws at breakneck speed with little to no oversight. And in my view, that is an affront to democracy.

"When retrospectively, the laws do eventually come before Parliament, there's very little debate and there's no procedure actually in this Parliament for a proper debate. So I think that's all that's very unsatisfactory.”

He added:In order for the made affirmative procedure to be used, all that needs to happen is that a minister – it could be Mr Swinney himself – decides that something is urgent. They don't need to justify that, they don't need to come to Parliament and say why they think it's urgent.”

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Mr Swinney said Mr Simpson’s description of the use of the powers was a “ludicrous narrative”.

"Broadly, convenor, I don’t recognise the problem,” he said. "If Parliament doesn’t like it, it doesn’t have to approve it.”

He added: “The idea that this Government is not under scrutiny on Covid is just ludicrous.”

Under affirmative procedures, legislation has to be laid for 54 days.


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Mr Swinney said: “In the circumstances where urgent action is required, we cannot wait 54 days to do that. If the choice is between a made affirmative procedure that enables us to act urgently to protect public health and an affirmative procedure which takes 54 days, I'm afraid I'm going to come down on the side of made affirmative. because the decisions the Government have had to arrive at have been decisions which have a material impact on the protection of life an limb and the timescales that are normally associated with affirmative regulations frankly don’t allow for that.”

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