It is said that there is nothing so permanent as an emergency expansion of state power. True to form, the Scottish Nationalists have made a spirited defence of their claim to be the United Kingdom’s most enthusiastic authoritarians with a push to make many of the Scottish Government’s coronavirus powers permanent.
Due to the absurdly ill-planned nature of the current devolution settlement, there was no UK-wide pandemic response and Holyrood was left to devise its own pandemic control procedures. Two emergency acts were passed last year, both in single-day sittings, and MSPs subsequently voted to extend the provisions.
But now John Swinney, the Deputy First Minister, has launched a consultation on keeping many of these on the statute books permanently. According to the Daily Telegraph, he:
.”…unveiled a public consultation on removing the March 2022 expiry date for a host of extraordinary powers, including the ability to impose lockdowns, close schools and require people to wear face coverings.
“Controversial rules allowing more prisoners to be released early could also be extended, along with the wider use of fines as an alternative to prosecution.”
The Scottish Conservatives are up in arms about this, as are other civil society groups. There are several grounds to object to what the SNP is trying to do, both within the context of Scottish politics and in terms of the broader constitutional debate.
On the latter point, entrenching the Scottish Government’s pandemic powers would (and this is surely the intention) pre-empt any post-crisis review of the UK’s crisis-response architecture and vastly complicate any attempt to replace today’s balkanised arrangements with a proper, nationwide system. Moreover, since the financial measures that make lockdown viable are controlled by the Treasury, we can expect this move to be followed by yet another round of demands for devolution of borrowing and other financial powers.
Setting that to one side, it is not unproblematic to try and simply carry emergency legislation – subject to truncated debate and voted through at a moment of crisis – into ordinary law. Inertia is a powerful thing, as anyone who’s taken months to cancel a subscription they aren’t using can tell you.
There is thus a case to be made that if Scotland really does need laws such as these, there is no harm in allowing the emergency provisions to lapse and then introducing new legislation via the normal procedures. This is especially the case for laws which will touch on such liberties as freedom of assembly, which these will. Again from the Telegraph:
“SNP ministers also want to make permanent their power to make public health protection regulations, for example by limiting the number of people in gatherings, introducing lockdowns and requiring face coverings.”
Nor should MSPs discount the fact that by making permanent provisions which they promised would be temporary, voters will be completely justified in being more suspicious of them the next time emergency powers are required. Lockdowns as an extraordinary response to a novel pandemic virus are one thing; lockdowns as a normal tool in the Scottish Government’s public health arsenal are quite another.
That the Treasury has to underwrite the use of these powers may give the Government the cover it needs to override these provisions, should they become law. With new research finding that the ‘Union dividend’ to Scots is now higher than ever, there is no harm in not only emphasising the positive role the financial might of the British state plays in Scottish life, but using that power to justify a better-harmonised, more national approach to related parts of the constitution.