Responding to COVID-19 in Scots law

In early 2020 there entered the United Kingdom a novel coronavirus, the cause of a disease known as COVID-19, which transformed life for millions of people across the world. At the time of writing it has cost, on a conservative estimate, almost 2,500 lives in Scotland.¹ In an attempt to slow its spread, all facets of life were disrupted. Schools were closed, non-essential businesses shuttered, and the majority of the population confined to their homes, with predictable but nevertheless massive economic impact. This piece offers a preliminary overview of the key strands of the response to COVID-19 in Scots law. Such response offers important lessons regarding both the legal response to emergencies – in particular, emergencies which differ from the paradigm – but also for the light it sheds on the operation of devolution in a context entirely unlike any other that has yet arisen.

The novel coronavirus first emerged in China in late 2019 and early 2020, spreading outwards from there. The World Health Organisation declared it a pandemic on 11 March 2020, by which time the disease had been present in the United Kingdom for around six weeks, with evidence of in-country transmission having taken place around the end of February. Though the situation was by any standards an emergency, it might have been accommodated in domestic law in a number of different ways, with consequences for the role to be played by devolved institutions. Under the devolution settlement, emergency powers are reserved to Westminster,² but health is devolved. Had the pandemic been treated as an issue relating to emergency powers there would have been a more limited role for the devolved institutions than in fact eventuated. Emergency regulations made under Part 2 of the Civil Contingencies Act 2004 (“CCA 2004”) are made by the UK Government. Although there is an obligation to consult the devolved institutions in advance of making regulations which apply to the territory for which they are responsible,³ that is disapplied in cases of urgency.⁴ The United Kingdom chose not to address the pandemic within this emergency powers framework. One possible contributing factor was the role of Parliament in the making of CCA regulations,⁵ and the knowledge that Parliament would probably have to operate on a reduced basis, as indeed happened following the February recess. Instead, the pandemic was treated – correctly – as a public health issue, a framing which afforded devolved institutions a much greater role. One result of that framing, of course, was to share the political cost of the (potentially unpopular) actions which had to be taken between the governments at Westminster and those devolved institutions.

Although the public health framing ensured the close involvement of the devolved institutions, the existing powers of the Scottish government in the domain turned out to be limited. For England, the key powers – those ultimately used for many of the most significant measures – are found in the Public Health (Control of Disease) Act 1984,⁶ having been inserted into it by the Health and Social Care Act 2008. That Act does not extend to Scotland. The result was that while an early reliance on voluntary cooperation in England appears to have been part of a deliberate strategy, in Scotland that strategy was the only one available to the government: as a number of its early communications made clear, when it was asking organisers to cancel events, it had no power to require them to do so.⁷ And so...