Fred Mackintosh QC

Coronavirus has required an unprecedented response from the UK and Scottish governments. In order to minimise social interactions and reduce the reproduction number of the virus, since 26 March 2020 no person has been able to lawfully leave the place where they are living without a reasonable excuse. That restriction can be found in Regulation 5(1) of the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. Regulation 6(1) prohibits gatherings in a public place of more than two people from more than two households. Regulations 3 and 4 limit which businesses can trade and how they must do so. Specific criminal offences and a ‘reasonable excuse’ defence were created in Regulation 8.

These prohibitions and the ‘Stay At Home’ public health message that they reinforce have helped to cut the reproduction number of the virus to such an extent that Scottish ministers have now felt able to relax the lockdown.

The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 were made by Scottish ministers under powers conferred by section 49 and of schedule 19 of the Coronavirus Act 2020. That act was introduced in the House of Commons on 19 March and received Royal Assent on 25 March. It therefore looks as the Westminster granted Scottish ministers these powers. That would put the Parliament of the United Kingdom in ultimate control of lockdown and would limit the extent that the Scottish government has any room for independent action in this area. However, further examination shows that this is not actually the case.

The devolution settlement provides that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament (Scotland Act 1998, section 28(8)). Whilst the Supreme Court has recognised this as a constitutional convention rather than an enforceable prohibition, we would expect Holyrood to pass a legislative consent memorandum whenever Westminster chooses to legislate in devolved matters.

This is what happened in this case. On 24 March 2020, the Scottish Parliament approved a legislative consent memorandum (S5M-21322) to permit the Parliament of the United Kingdom to pass (amongst other provisions) section 49 and of schedule 19 of what became the Coronavirus Act 2020. Holyrood was asked to approve the passing of the Coronavirus Bill at Westminster because many of its provisions could have been the subject of an act of the Scottish Parliament.

The terms of the legislative consent memorandum confirm that giving ministers the powers to make the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 was well within the competency of the Scottish Parliament.

The existence of a legislative consent memorandum means that the Scottish Parliament could have chosen to give Scottish ministers the power to make these health protection regulations. Before lockdown, Scottish ministers spoke of the need ensure that messages from all four governments were co-ordinated and that resulted in a single UK wide emergency Coronavirus Act in late March rather than separate legislation in Westminster, Holyrood, Cardiff and Belfast. This could well have a real impact on how the four parts of the UK react to any second peak of coronavirus infection and the economic consequences of such a disaster. If one government decides to loosen or re-impose lockdown and the other does not wish to do so then the powers of the Scottish Parliament give Holyrood a choice. There would appear to be no constitutional reason why Scottish Parliament health protection legislation on lockdown requires the approval of the UK government or Parliament. Of course, if this is true now, then it must also have been true in March.