BIHR BRIEFING: Response to the first Progress Report to the Scottish Parliament on the use of Coronavirus Emergency Powers in Scotland

The human rights risks of the use of Emergency Powers without transparent communications or robust monitoring mechanisms

 

Summary

In response to Coronavirus (Covid-19), the UK government introduced a range of temporary changes to health and care legislation via the Coronavirus Act 2020 (CVA), passed by Parliament on 25 March 2020. The Coronavirus Act includes changes to health and care legislation in Scotland, to which Scottish Ministers gave their legislative consent. The Coronavirus Act is time-limited for two years and will be subject to six monthly reviews (although the robustness of this review process has raised concerns). The Scottish Government has the power to switch these changes on (and off again) when they consider it necessary and appropriate to do so (based on the situation in Scotland). The Scottish Parliament also passed the Coronavirus (Scotland) Act on 6 April 2020 which introduces a range of further powers.

The purpose of the legislative changes within the Coronavirus Act 2020 and the Coronavirus (Scotland) Act are explained by the Scottish Government as necessary to help protect the public, maintain essential public services and support the economy. This is indeed an unprecedented time at which many of us find ourselves in an unfamiliar (or familiar) position of vulnerability.

Emergency powers are not in themselves incompatible with human rights law. Emergency powers exist to safeguard those most in need of protection. However, for this to be the case, it is vital that the Scottish Government can assure the following:

  • The process for activation and continued use of emergency powers is clear and transparent.
  • That support is provided to public officials and those delivering a function of public nature to ensure they apply any restrictions compatibly with human rights law. It cannot be assumed that public bodies have the legal knowledge and capacity to do this.
  • That there is a clear commitment to democratic oversight in monitoring and reporting on the use of emergency powers.

Based on our work with Scottish groups and people over the last 10 weeks, this briefing highlights our concerns that the above conditions are not being met. In particular:

  • There is confusion amongst people, service providers, authorities and other organisations involved in care and support in Scotland about which provisions of Scottish law have been suspended.
  • Where duties have been suspended, for example social care duties under Section 16 and 17 of the Coronavirus Act, there is no transparency about which Local Authorities are implementing these easements and how these are being monitored.
  • The First (two monthly) Progress Report to the Scottish Parliament published on 9 June 2020 falls far short of offering any clarity on the use of Emergency Powers at local level.
  • Without transparency and monitoring of these Emergency Powers we cannot be sure that these are being implemented according to human rights law. People and their families remain worried about their access to care and support, advocacy and community groups are unable to challenge without information and those working across health and care cannot offer clarity.

This briefing sets out the work BIHR has been doing in Scotland during Coronavirus, the concerns that have been raised with us, our response to these issues and recommended actions.

 

This briefing highlights:

  1. Our work as a human rights organisation: the voices who have shaped our desire to call for action
  2. Our concerns about Section 16 of the Coronavirus Act and its current status as reported on 9th June 2020
  3. Our response to the First (two monthly) Progress on the use of Emergency Powers in Scotland.
  4. The human rights implications of the current situation in Scotland
  5. Our campaigning, next steps and how you can be involved

 Read the full briefing here.

We (along with Scottish Partner Organisations) have written to the Scottish Parliament, Equalities and Human Rights Committee about the concerns addressed in the briefing.

Read the letter here.