Use of the Made Affirmative Procedure in Scotland: Reflections from the Pandemic

Concerns about delegated powers are not new. Their use in Westminster has been the focus of a dedicated stream of work by the Hansard Society for almost ten years,¹ the Lords’ Constitution Committee has published two comprehensive reports raising significant constitutional concerns about the current state of affairs,² and numerous scholars have explored their effects and challenges.³ These interventions take place against the backdrop of five years in which the balance of law-making powers in the UK has shifted in unprecedented ways due to Brexit and COVID-19. The recent publication in November 2021 of two critical reports by the Delegated Powers and Regulatory Committee and the Secondary Legislation Scrutiny Committee highlights a sense of growing momentum for a “reset” of the use of delegated legislation in Westminster.⁴

Less has been said about the situation of delegated powers at the devolved level, and the literature on the Scottish situation is dated.⁵ Intuition would suggest that differences in the electoral system (which make a strong majoritarian government gaining control of the unicameral parliaments in Cardiff, Edinburgh and Stormont difficult, if not unlikely) mean that devolved executives cannot get away with broad delegations of powers. This certainly seemed to be the case in Scotland, as the SNP led a minority government for most part of the pandemic, until 31 August 2021, when the First Minister announced an agreement with the Scottish Green Party.⁶

However, a recent “Inquiry into the use of the made affirmative procedure during the coronavirus pandemic” by the Scottish Delegated Powers and Law Reform Committee (DPLRC), which has just published its report, has drawn attention to the fact that concerning practices at Westminster level may also be present at the devolved level.⁷ Thus, in a recent oral evidence session, Graham Simpson MSP, a DPLRC committee member, claimed that while, between 2011 and 2019, only nine Scottish Statutory Instruments (SSIs) had been made under the made affirmative procedure (MAP), between 20 March 2020 and 2 December 2021, 132 SSIs were subject to the MAP⁸ – a remarkable increase.

This growth is partly explicable by the legislative framework through which the Scottish Government’s pandemic response is shaped. Both the Coronavirus Act 2020 – a UK-wide piece of law – and the Public Health etc (Scotland) Act 2008 allow for regulations to be made by the MAP where a Scottish Minister considers there to be a reason of urgency for so doing.⁹ The regulations are made by laying a draft before the Scottish Parliament, and they cease to have effect after twenty eight days unless they are approved by Parliament.¹⁰ Given the quickly changing epidemiological situation, one might argue that there is in principle little objectionable about the use of the MAP to make such regulations if the statutory condition of urgency is met and potential negative effects on the principles of accountability and shared power between the Scottish Government and the Scottish Parliament are appropriately mitigated through restrained use of the MAP. However, our analysis of a sample of SSIs made during the pandemic suggests that these conditions may not have always been met.

The sample we consider in this short analysis comprises sixty-four SSIs made between 26 March 2020 and 29 November 2021. A full list of these regulations is available as supplementary data online.¹¹ These SSIs are those drafted under powers provided by Schedule 19section 1(1) of the Coronavirus Act 2020, i.e. SSIs made “for the purpose of preventing, protecting...