The Scottish Acts are subject to a sunset clause. The measures will expire on the 30 September 2021, unless Parliament passes legislation extending this expiry date. This is in contrast to the UK Coronavirus Act 2020, which is subject to a two-year sunset clause. It is Scottish Ministers to extend the Scottish Acts through Henry VIII powers twice, for periods of six months each time. Accordingly, the Scottish Parliament approved extension of the expiry date until the 31 March 2021 and the 30 September 2021, respectively.
The Cabinet Secretary for Covid Recovery, John Swinney, had announced the introduction of this Bill in a statement given before the Scottish Parliament on the 9th June. He went on to say that it was the Scottish government’s view that some of the protections and extraordinary measures contained in the Scottish Acts remained necessary beyond their expiry date. The Bill seeks to amend the expiry date of the two Scottish Acts to 31 March 2022, and to enable a further six months extension until the 30 September 2022 through secondary legislation, while also providing the early expiry of specific emergency measures that are no longer considered necessary. Therefore, in essence, this Bill is seeking to achieve what in the past has been achieved through secondary legislation which is no longer available due to the sunset clauses.
In response to the 9th June statement, Murdo Fraser (Con) and Alex Cole-Hamilton (LibDem) MSPs asked the government to publish the Bill, but to delay its parliamentary stages until early September. They argued that this would foster greater parliamentary scrutiny and provide opportunities for consultation. The Secretary for Covid Recovery declined, arguing that delaying the Bill’s passage would introduce uncertainty among public bodies, including courts, relying on emergency measures to operate in pandemic times. It is the government’s expectation that this Bill will complete all its parliamentary stages by the end of this week, before summer recess.
While we accept that certainty is a relevant consideration, we claim that it should be balanced against other constitutional principles at stake, not least the significance of robust parliamentary scrutiny of the decision to extend the emergency measures. In this blog post, we argue that protecting the Scottish Parliament’s constitutional role in holding the government to account demands postponing consideration of the Bill in formal parliamentary processes to early September. This would be consistent with the reasonably good practices of accountability to Parliament that have been evident in Scotland throughout the pandemic. Furthermore, we outline three ways in which proceeding with the announced course of action is problematic, arguing: (i) that the approach adopted could put the Scottish Parliament on a ‘cliff edge’, facing the stark choice of either agreeing with the government notwithstanding an unsatisfactory opportunity for scrutiny, or stripping people of relevant protections; (ii) that there is evidence of increasing politicisation of emergency responses in Scotland so that more time should be given for debate to address MSPs’ concerns; and (iii) that parliamentary committees are still not operating fully after the recent elections, and therefore, that the debate at the Chamber will not be informed by their relevant scrutiny work.
Undermining good parliamentary accountability practices throughout the pandemic in Scotland
Our first point is that if the Bill’s passage is not delayed, this would run against good parliamentary accountability practices that have characterised the Scottish approach to emergency measures.
A recurring theme of the Scottish approach to the pandemic has been the degree of apparent collaboration between Bute House and Holyrood, which stands in contrast with the way relationships between Whitehall and Westminster have unfolded. This is exemplified, for instance, by differences when governments announce lockdown policy changes. Whilst the First Minister announces these changes before Parliament, the Prime Minister and members of his administration tend to announce changes in English regulations by press conference.
The centrality of the Scottish Parliament to the pandemic response is also reflected in two significant political accountability practices, which were shaped by cross-party talks and collaboration between government and Parliament.
The first is the creation of the successful Covid-19 Committee, whose work covered a wide range of dimensions of the Scottish government’s response to the pandemic. The Committee undertook thematic inquiries into matters such as the vaccination programme, and major policy frameworks for Covid decision-making published by the government. It also scrutinised both primary and secondary Covid-related legislation. Significantly, the Committee scrutinised the second Scottish Coronavirus Act 2020 and held inquiries in August/September 2020 and February/March 2021 on the six month renewals of the two Scottish Acts.
The second is the government’s reporting practices. Although prompted by developments in Westminster (where the UK government undertook to produce two-monthly reports in the Coronavirus Act 2020), during the early months of the pandemic the Scottish practice of reporting took on a distinctive character following exchanges between the Cabinet Secretary for the Constitution, the Parliamentary Bureau Committee, the Presiding Officer, and the leaders of opposition parties. This has resulted in the production of extensive two-monthly reports by the Scottish government. While these practices have a statutory basis in the two Scottish Coronavirus Acts, the government’s approach goes beyond what the Acts strictly require, honouring political commitments to comprehensiveness in reporting made by the Cabinet Secretary for the Constitution.
The two-monthly reports provide Parliament with a good deal of information and data, and serve as a starting point in scrutinising the pandemic response, covering the exercise of emergency powers, including delegated powers exercised under the UK Coronavirus Act, the two Scottish Coronavirus Acts, and other Covid-related Scottish Statutory Instruments. The reports are long and detailed, with the most recent report running to more than 200 pages. They contain a descriptive account of how the government has exercised the powers under the Act, yet also evaluative considerations as to why the government thinks the emergency measures continue to be necessary and proportionate, despite their human rights implications. The reports are laid before Parliament and accompanied by a statement and time for debate, with questions to the relevant minister, meaning that there is a regular cycle of scrutiny and debate on the impacts and effects of the pandemic response within the Scottish Parliament.
This shows that, while not without its flaws, the practice of parliamentary scrutiny of pandemic responses in Scotland is impressive, certainly when considered against the somewhat less robust process in Westminster. Introducing a Bill to extend the expiry date of the two Scottish Acts and debating it now, the week before the Scottish Parliament is due to go into recess and when committees are not yet fully operational, seems a striking departure from the previous approach.
The significance of providing sufficient time for parliamentary scrutiny of the extension of the two Scottish Coronavirus Acts
This alone may be reason enough to argue that the debate on the extension bill should be delayed until after the summer recess (i.e. the very start of September), but there are three further factors in support of delaying the passage of the Bill that are worth considering here.
First, there is a real risk that the Scottish government would put Parliament on a ‘cliff edge’ if it persists in passing this Bill this week. The Secretary for Covid Recovery announced that although this Bill will be fast-tracked, it will receive three days of parliamentary scrutiny (rather than the usual one for emergency powers), so that stages one, two and three will all be taken next week. A business motion reflecting this timetable was passed last week at the Scottish Parliament. Whilst this might seem a concession, it is worth noting that it follows the precedent set by the debate on the Second Scottish Act, which also received three days of scrutiny as proposed by Parliamentary Bureau Committee. Thus, while the extended timetable is welcome, we suggest it is the bare minimum that could reasonably be contemplated for timetabling of coronavirus emergency legislation.
Importantly, three days is still a remarkably short period of time to debate such a Bill, especially where it is not pre-published and where, as we detail below, parliamentary committees are still in set-up stage and thus not yet settled into modes of working or prepared to scrutinise a piece of legislation of this kind with so little notice. The temporalities of the Bill process also matter: with the summer recess coming, and the government insistent that public institutions require ‘certainty’, Parliament cannot delay things, force the government to come back again, or take its time in considering the Bill.
MSPs are thus presented with the stark choice of agreeing to the Bill, or scrapping altogether a set of emergency measures that prevent disruption in the operation of the courts and other public bodies, and provide relevant protections to individuals. Of course, Parliament could call the government’s bluff and refuse to pass the Bill this week, effectively forcing government to return and try again in September, but standing on the cliff edge tends to make one rather risk averse. It is also true to say that, in some ways, Parliament would similarly be on a ‘cliff edge’ in September, but if the Bill is debated in September there would be time, during the recess, for consultation, discussion, and negotiation on amendments or other changes that in practice would act as an extension to a three-day set of debates to be held in September.
A second reason for allowing ample time for legislative scrutiny is that debates on the Scottish Acts have become increasingly more politicised and polarised. Whilst in the first Scottish Act the government managed to pass the Bill undefeated (although it agreed in advance to drop its proposal for suspension of trial by jury, on which it likely would have been defeated), during the passage of the second Scottish Act the government was defeated on its proposal to extend further the amount of time in which freedom of information requests had to be responded to. In addition, a total of five non-governmental amendments were approved by the Scottish Parliament, despite government opposition to them. These amendments included reporting duties on social care matters and freedom of information requests, but also policy measures that varied from enabling hospitality business to place tables and chairs outside their business premises, to providing non-domestic rate reliefs to the newspaper publishing industry, and extending the maximum duration of temporary traffic regulation orders.
In our view, this speaks to an evolution in MSPs’ disposition towards proposed responses to the pandemic. As the pandemic develops, and MSPs have become accustomed to governing in/with the pandemic, the tendency to accede to government proposals in order to smooth the path to respond to the pandemic has been tempered by a willingness to discuss and contest certain policy decisions and issues. This increased politicisation has been visible on different scales, from unsuccessful attempts by the Greens to introduce further tenancy protections, and by Labour MSPs to protect the position of trade unions in various ways, to opposition from the Conservative party to extending the two Coronavirus Acts back in mid-March 2021. It is entirely foreseeable that there would be opposition to some or all of the proposed extension in the Bill. Indeed, there are signs that it may be opposed by the Conservative Party. A constrained timetable, compacted by the temporalities of doing business in the week before summer recess, may curtail opportunities for such politicisation and for MSPs to introduce and discuss at length further protective policy measures that address the pandemic and its consequences.
Third, the timing of this Bill is particularly challenging because Parliament is not in the best position to conduct robust scrutiny of the Bill. Parliamentary committees have not sat for more than a month, i.e. since their dissolution due to May parliamentary elections. Indeed, it was only on Tuesday 15th June that Parliament approved motions establishing committees for this sixth session (see motions S6M-00393 and S6M-00394). Committee members were just announced on Friday 18th.
Passing this Bill without operational parliamentary committees is clearly problematic. The Scottish Parliament is unicameral and relies heavily on select committees’ contributions to underpin and inform debates. Furthermore, if anything is clear from more than one year of the pandemic, it is that the most robust scrutiny of emergency measures takes place in committees. The Scottish Parliament is no exception. The appointment of the Covid-19 Committee in the 5th session strengthened Parliament’s ability to scrutinise the government’s emergency response to the pandemic. This is evident if one contrasts how this Committee and the Chamber dealt with the two previous six-months renewals.
In the first renewal, back in August 2020, the Covid-19 Committee was the only parliamentary body that scrutinised the government’s regulations extending the expiry date of the two Scottish Coronavirus Acts. The Committee held oral evidence sessions with relevant stakeholders and questioned the Cabinet Secretary for the Constitution. In sharp contrast, these regulations were approved without debate and without a vote by the Chamber, the Committee already having carried the weight of much of the substantive scrutiny work. Likewise, the second renewal in March 2021 was preceded by a successful Covid-19 Committee inquiry into “Covid-19 legislation: next steps”, which gathered an astonishing number of 846 written evidence submissions. Again, in sharp contrast, the Chamber spent five minutes debating the regulations extending the expiry date of the Scottish Coronavirus Acts, before approving them on a division.
This highlights the significance of strong scrutiny performed by parliamentary committees. The Scottish government published its most recent two monthly report on the Coronavirus Acts on 9th June, setting out the status and operation of the emergency measures, and advocating for their continuing necessity. So far, the newly created Covid-19 Recovery Committee has not convened, and this report has not been considered by either a committee or the Chamber. Considering that there is only one week left for the passage of the Bill before recess, it is apparent that the Covid-19 Recovery Committee will not be able to subject this report to scrutiny or to hold oral evidence sessions in advance of the passage of the Bill.
Across the wide array of government responses to the pandemic, contributions by the Covid-19 Committee, the Health and Sport Committee, and the Finance and Constitution Committee in the past have all facilitated a more informed debate at the Chamber. Their insights have enabled MSPs to identify contentious provisions and omissions, to raise awareness about measures and their implications, and to build momentum behind certain key amendments. Certainly, as this is primary legislation, we can expect far more than the cursory 5-minute consideration in the Chamber that the regulations extended Scottish acts received, but even then the expert and close scrutiny of the kind provided by committees will be missing, simply because, having just been established, the relevant committees will only just be getting started. Postponing the passage of the Bill until early September will enable parliamentary committees to resume their work and contribute effectively to its scrutiny, enabling Parliament to better understand whether, to what extent, and for how long the existing powers should be extended.
Conclusion
During this pandemic, the Scottish Parliament has generally distinguished itself through impressive (though imperfect) political accountability characterised by openness and transparency by the government, cross-party collaboration, and energetic parliamentary committees performing high quality scrutiny. The announcement by the Scottish government to rush the Coronavirus (Extension and Expiry) (Scotland) Bill through Parliament one week before summer recess strikes us as inconsistent with these practices. More fundamentally, it puts Parliament in a challenging position, diminishing its ability to shape the emergency response, in circumstances when parliamentary committees have not resumed their work, and pressurising MSPs to either accept the government’s proposal, or face political responsibility for stripping people in Scotland of relevant protections provided by the Scottish Acts. There is still time for the Scottish government to amend this course of action, and to make itself meaningfully accountable to Parliament by facilitating better scrutiny in doing so.
This post reflects preliminary findings of the COVID-19 Review Observatory, tracing and enhancing parliamentary engagement with rights in the UK’s response to SARS-CoV-2. The project is funded by the Arts and Humanities Research Council (AHRC) as part of UKRI’s Covid-19 funding.
Dr Pablo Grez Hidalgo is Research Fellow at the CVRO and tutor in Public Law at the University of Edinburgh.
Fiona de Londras is Professor of Global Legal Studies at Birmingham Law School and PI of the CVRO.
Daniella Lock is a Research Fellow at the CVRO and doctoral student and Teaching Fellow at University College London.
(Suggested citation: P. G. Hidalgo, F. Londras and D. Lock, ‘Parliamentary scrutiny of extending emergency measures in the two Scottish Coronavirus Acts: On the question of timing’, U.K. Const. L. Blog (21 June 2021) (available at https://ukconstitutionallaw.org/))
UK Constitutional Law Association 