Rights and parliamentary oversight in the pandemic: reflections from the Scottish Parliament

Abstract

The Scottish Parliament is the only devolved legislature that has passed general Coronavirus-related emergency primary legislation, and it is now debating legislation that would put emergency public health powers on a permanent footing. This paper considers whether, and if so to what effect, human rights have acted as a core concern in law-making during the pandemic in Scotland in order to draw out lessons for future crises. The analysis reveals a mixed picture. In situations where Parliament is closely involved in scrutiny, like legislative debates, human rights concerns were surfaced and in notable ways rights operated as an effective limit on desired state action. However, much of the pandemic response was executed by means of secondary legislation, as enabled by the Coronavirus Act 2020, and there was a clear pattern of making this secondary legislation using the Made Affirmative Procedure. This 'scrutiny-lite' legislative pathway is one in which there are reduced opportunities for and compulsions towards rights-based reasoning and justification, even though as a matter of democratic legitimacy and the limitation of state power such instruments are particularly in need of robust parliamentary scrutiny. Thus, while well-embedded parliamentary processes and an apparent hospitability towards rights by the Scottish Government resulted in admirable levels of rights-based scrutiny of COVID-19 related primary legislation, this was undermined by extensive recourse to scrutiny-lite modes of delegated law-making and the Scottish Parliament's failure to subject resulting Scottish Statutory Instruments to meaningful scrutiny.

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https://strathprints.strath.ac.uk/80807/