MSPs to examine use of emergency rule-making powers

19.11.2021

The Scottish Parliament’s Delegated Powers and Law Reform Committee is beginning an inquiry looking at the Scottish Government’s use of emergency regulation making powers.

The regulation making power, known as the ‘made affirmative procedure’, has been used over 100 times by the Scottish Government since the start of the pandemic. While the legal mechanism existed before, it was only used a handful of times in a year.

The made affirmative procedure 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 Parliament gave the Scottish Government more ability to use these powers in the Coronavirus Acts, originally passed in April and May 2020. The UK Coronavirus Act also allows for the procedure to be used in the UK Parliament and devolved legislatures.

The committee hopes to help the Parliament ensure an appropriate balance between flexibility for the Government in responding to an emergency situation while still ensuring proper parliamentary scrutiny and oversight.

Speaking as the inquiry was launched, Committee Convener, Stuart McMillan MSP, said:

“There are good public health reasons to ensure the Scottish Government can act quickly to keep people safe. The Committee recognises that use of the made affirmative procedure has allowed the Scottish Government to respond quickly to the many challenges presented by the pandemic.

“But our Committee wants to ensure the power to do so is used appropriately and necessarily.

“Whenever possible, MSPs should have proper opportunities for oversight, and the public have opportunities to engage and comment on proposals before they come into force. This is a cornerstone of our democracy in Scotland.

“We will consider how the power is currently being used by the Scottish Government and make any recommendations for changes we find necessary.”

Background

The Scottish Government’s use of the made affirmative procedure for covid instruments is based on powers in four Acts:

Scottish Parliament legislation
• Coronavirus (Scotland) Act 2020
• Coronavirus (Scotland) (No. 2) Act 2020
• Public Health etc. (Scotland) Act 2008

UK Parliament legislation
• Coronavirus Act 2020

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