Sometimes you need to take a moment in 2021 and think about what we have lived through in the last eighteen months.
Confined to our homes for months at a time. Schools, shops and churches all closed. Family ceremonies like weddings and funerals subject to strict state imposed conditions. All of this backed up by the force of law – either stemming from the Scottish Parliament or Government.
As the pandemic seems to be receding in the light of the vaccine what will happen to these legal powers? Our first thoughts would be they will be set aside and put into historical memory. However proposals – currently open to public consultations – could see a lot of these powers retained by our Scottish Government. This raises serious questions of legitimacy, scrutiny and accountability.
When Covid-19 hit, the major powers used by public authorities had a number of sources. They mainly stemmed from an Act of Westminster and two similar pieces of legislation from Edinburgh. These gave further power to ministers to draw up detailed regulations some of which included handing major powers to the police. For example, bans on travel within Scotland and gatherings within your house.
As the pandemic waxed and waned in 2020 the law remained a constant with the “temporary” legislation being extended constantly. Ironically the last piece of legislation extending powers until March 2022 passed by Holyrood came into force the day that most restrictions were lifted in Scotland on the 9th August.
READ MORE: SNP proposes making powers to close schools and introduce lockdowns permanent
Under the current consultation many of these powers would become permanent after next March with yet another Act of Parliament giving them this status. This means that the Government would be given powers to make restrictions such as we have seen in the last year with no need for further votes in the Parliament.
Allowing government to pass laws including potentially power to the police without Parliamentary scrutiny should raise an alarm. The making of controversial legal powers permanent also has distant historical echoes of the temporary Prevention of Terrorism Laws of the 1970s which were passed in London to deal with an emergency situation of IRA bombing – they were then endorsed by Parliamentary vote annually until the year 2000.
However, the government’s justification for endorsing this development focuses on the positives. John Swinney, the minister overseeing this, said society would not want “to lose beneficial transformations”. The extended use of digital hearings in the Scottish court system for example could improve access to justice and indeed may be vital to clear the backlog of cases due to the pandemic. Equally it seems to make sense to make permanent the extra protection given to renters in the private sector against eviction during the pandemic.
But, obviously, it does not end there. There are also contentious issues such as extending the use of fiscal fines rather than to hear criminal trials in court. Scots Law has traditionally put strict limits on the time remand prisoners can be in jail awaiting trial – these could be set aside by ministerial rule.
As well as what would be contained in the laws the way in which those laws are made raise important issues. Although Swinney has said he is happy to “report” on any changes to Parliament this falls far short of scrutiny or indeed having any votes to endorse them.
At times of public health emergency like the one we have all lived through many of us are prepared to set aside our democratic rights temporarily for the greater good. Problems immediately develop though when that emergency fades and the state powers remain.
The idea of giving permanent powers to government without regular democratic scrutiny outwith a crisis is something else that should give us all pause for thought.
Dr Nick McKerrell is a Senior Lecturer in Law at Glasgow Caledonian University.
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