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Chamber and committees

Delegated Powers and Law Reform Committee

COVID-19 Recovery Committee

Letter from the Convener of the COVID-19 Committee to the Convener, 15 December 2021

Dear Convener,

The Covid-19 Recovery Committee (‘the Committee’) welcomes the opportunity to contribute to the Delegated Powers and Law Reform Committee’s inquiry.  The Committee recognises that the Covid-19 pandemic has given rise to exceptionally challenging circumstances in which to govern. At times, the government has needed to act urgently and the made affirmative procedure enabled it to do so. This was most apparent at the start of the pandemic when little was known about the disease and vaccines had not yet been developed to mitigate its impacts. 

Nearly two years on from the first confirmed case of Covid-19 in Scotland, more is now understood about the disease and the tools we have developed to combat it are more refined. This period of learning has enabled the government to draw on past experiences and to anticipate certain challenges, such as heightened pressures on the NHS in winter, before an urgent need to act arises.

Scottish Ministers are given the power to determine whether they require to use the made affirmative procedure under the Coronavirus Act (Coronavirus Act 2020, 2020 (c. 7), schedule 19, paragraph 6(2). The Committee considers that there must be checks and balances on the use of this power and it should not be used as a mechanism to maximise the period for policy development at the expense of the normal timescales for parliamentary scrutiny. This is best illustrated by the vaccination certification scheme. There was a significant delay between the Scottish Government first highlighting its policy intent and the regulations being laid and subsequently enforced (Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 2) Regulations 2021 (SSI 2021/349). The Committee considers that the use of the made affirmative procedure was not appropriate in these circumstances. The Committee welcomed the Scottish Government’s consideration of this issue when it sought to extend the vaccination certification scheme to include proof of a negative test using the affirmative procedure in an expediated timescale (Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 4) Regulations 2021 (SSI 2021/453).

The Committee considers that the Scottish Government’s default position should be to use the affirmative procedure to introduce new health protection regulations under Schedule 19 of the Coronavirus Act 2020 (Coronavirus Act 2020, 2020 (c. 7), schedule 19). The affirmative procedure enables the Committee to gather views from affected stakeholders before proposed policy changes are made into the law. This process is an essential part of the Committee’s role in delivering the Scottish Parliament’s mission statement to create good quality, effective and accessible legislation. In circumstances where it is not possible to allow the full 40 days for parliamentary scrutiny, the Committee would be content to consider proposals for a compressed period of scrutiny on a case-by-case basis.

The Committee wrote to the Scottish Government on 30 September 2021, expressing its concern that the pace of health protection regulations to date had made it difficult for businesses to plan ahead (1). This is why the Committee called upon the Scottish Government to explain how it would respond to a worsening situation in the pandemic should that arise. As lead policy committee, we consider that greater clarity on the overall Covid policy framework would maintain public confidence in Scotland’s response to the pandemic and alleviate pressure on businesses caused by any rapid changes to health protection regulations going forward.

The Committee is concerned by the recent mutation of the disease that has manifested in the Omicron variant. The Committee recognises that this latest development may require the Scottish Government to act urgently once more and we will continue to monitor developments closely.

I hope this response has been helpful to your inquiry. The Committee will follow your evidence sessions with interest and we would be grateful to receive a copy of your report when it is published.

Siobhian Brown MSP Convener
COVID-19 Recovery Committee

1. Convener of the COVID-19 Recovery Committee to the Deputy First Minister and Cabinet Secretary for COVID Recovery, 30 September 2021.

Related correspondences

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Letter from the Chair of the Joint Committee on Statutory Instruments UK Parliament to the Convener, 16 December 2021

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Letter from the Convener to the Convener of COVID-19 Recovery Committee, 25 November 2021

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Letter from the Chair of the Legislation, Justice and Constitution Committee to the Convener, 17 December 2021