Emergency laws are no time for political hobby-horses

Emergency laws are no time for political hobby-horses

by Liam Kerr
article from Thursday 25, June, 2020

SINCE THE START of lockdown, over three months ago, the Scottish Parliament passed two “emergency” Coronavirus Bills. The first Bill passed all three stages in one day. The second in a week. 

There is no doubt the pandemic was and remains an emergency situation requiring emergency measures. Emergency measures demand expeditious and emergency processes. Powers to do things like support carers and give business rates relief are required quickly and must be expedited. 

But it is nevertheless concerning how we go about this and what the implications are.

Opening stage 1 of the second Coronavirus Bill, the Cabinet secretary said, “With emergency legislation, we believe that bills… should contain only provisions that are urgent, necessary and unavoidable”. I believe that too. 

It follows from that, that where those provisions are not “urgent, necessary and unavoidable”; where there is not the imperative to legislate now, then it is not required to put in ‘easy wins’ or ‘nice-to-haves’. Or, as my colleague Graham Simpson memorably put it in the stage 1 debate “this is not a time to test out hobby horses”.

Scrutiny of provisions, no matter how apparently benign or straightforward they might seem, must be carried out properly if and whenever possible – and Government must be held to account appropriately. 

When I closed the stage 1 debate on the second Bill, I referenced the House of Lords Select Committee on the Constitution and quoted Clive Walker, Professor of Criminal Justice Studies at the University of Leeds who said:

"The various parliamentary stages are there for good reason. Members of both houses get to properly debate and discuss the issues, while people outside… who have expertise in the field - can also lobby and make a contribution. If you have legislation that's being enacted in a week, then none of this happens”. 

Exactly. Which is why we should always resist the temptation to include changes to emergency legislation no matter how minor – such as regulating what will now be next year’s UEFA football championship.

It is why we should not have been seeking to include restrictions on Freedom of Information in Emergency Bills as was forced through in a process described in the stage 1 debate by one MSP as a “distorted result”.

Should anyone need a reminder, in the first Coronavirus Act, the Scottish Government added in a requirement that the timeframe for FOI responses would be extended to 60 working days. All opposition parties united to give a clear view at the beginning that these powers should not have gone in. Yet it did.

So how did it happen? In an article in Holyrood magazine, the Murray Blackburn MacKenzie policy analysis collective say:

“The Scottish Government used its first piece of emergency legislation to curtail the use of freedom of information, exploiting the Presiding Officer’s casting vote, with confusion and disagreement over how the parliamentary arithmetic on the day made that possible”.

Adam Tomkins’ amendment successfully drew cross party opposition support in the second Coronavirus Bill to remove the provision. But it is deeply worrying that it needed to. 

We must be on our guard for such matters if, and no doubt when, emergency legislation is brought before us again.

The second key point again references the same House of Lords Select Committee which was unequivocal in its recommendation that emergency legislation should include a "sunset clause" and guarantee post-legislative scrutiny.

And of course this Bill and its predecessor Act do contain sunset clauses.

But in the last month or two there have been a significant number of Scottish Statutory Instruments passed which relate to Coronavirus. Not all, however, are directly pursuant to the Coronavirus Act. 

The rest are under various other bits of legislation, meaning presumably they are not subject to such sunset clauses. 

Now, maybe they have their own provisions but regardless, it must be concerning if the Scottish Parliament believes it is passing emergency legislation which will cease to have effect on the 30th September, when in fact the powers might last considerably longer. Indeed, provisions under the 1939 Emergency Powers Act, passed to empower the British Government to prosecute the war effectively did not fully cease to have effect until 1964, some 19 years after the specific emergency had officially finished. 

I was therefore pleased that Parliament voted to insert Adam Tomkins’ amendment to require the Scottish Ministers to undertake and report on all SSIs passed for a reason relating to Coronavirus. 

Such agreement did not, however, negate my point and caution is required where we are dealing with emergency bills in the future.

The policy memorandum claimed the powers of the second Coronavirus Bill are “far reaching and unprecedented”. Indeed they are. 

The SNP has already faced opprobrium for apparently exploiting this process for its own expediency. If in future we fail to ensure Holyrood only passes emergency measures in emergency legislation; if we fail to ensure that the passing of those measures is as rigorously scrutinised as possible and if we fail to ensure that protections such as sunset clauses apply, the consequences could be far-reaching and, by definition, for the worse.

Liam Kerr is Shadow Cabinet Secretary for Justice and a North East MSP for the Scottish Conservative and Unionist Party.

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