Scottish government told to justify ongoing use of emergency rule-making powers

Scottish government told to justify ongoing use of emergency rule-making powers

The Scottish Parliament’s Delegated Powers and Law Reform Committee has called on the Scottish government to start justifying its use of emergency regulation-making powers and detail why they are being used in each instance.

The powers, known as the ‘made affirmative procedure’, allow the Scottish government to make and change the law at short notice. Since the start of the pandemic they have been used more than 140 times.

The committee’s report raises concerns around how clear and accessible the laws created with these powers were.

While the Parliament still needs to approve any changes that are made to the law within 28 days, the committee want to ensure that regulations created or amended using these powers can be properly scrutinised.

The report calls on the Scottish government to publish its criteria for when it decides the situation is suitably urgent to necessitate the use of the procedure. It also asks the government to provide a justification for each future use of these powers.

The report also provides a framework which the committee will use to assess future use of the powers. The committee will be looking for four things in regulations: tight framing, a clear need for urgency, the impact they will have on people, and when they will expire.

If the Scottish government fails to justify its use of the powers, the committee will seek to raise the matter in the debating chamber.

In addition, the report proposes that a different form of expedited parliamentary oversight could be used on a case-by-case basis. This would ensure that a regulation can be robustly considered by the MSPs before changes to the law come into force.

Stuart McMillan MSP, convener of the Delegated Powers and Law Reform Committee, said: “The challenges created by the coronavirus pandemic have required the Scottish government to act quickly. The committee understands this and we can think of numerous occasions where this has been vitally important.

“However, we all also understand and wish to underline the importance of proper parliamentary scrutiny. We do not want to end the use of these useful powers, but we believe there are some areas where changes could help ensure these powers deliver good, accessible law.

“We were reassured by the commitments that we received from the Scottish government that the use of these powers would not become the norm. However, our suggestions are intended to ensure that the Parliament can best respond to their potential use in the future.”

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