Devolution and Emergency Measures in Response to COVID-19

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The UK has a multi-layered constitution, which raises questions of how powers to respond to the COVID-19 pandemic have been divided across its four governments and parliaments. In this post, we outline how the emergency measures taken in response to the pandemic are affected by the UK’s broader constitutional settlement, devolution, and the policy decision to pursue responses using an approach based in public health law.

Background: Devolution

The central government and parliament in Whitehall and Westminster operate both as the UK government and legislature, and as the English government and legislature. For the other constituent nations of the United Kingdom—Scotland, Wales, and Northern Ireland—significant policy matters are devolved under three separate devolution arrangements.

Northern Ireland has had some form of devolved government at various times since 1921, but devolution is now constituted under the Northern Ireland Act 1998. The current devolution settlements in Scotland and Wales are provided by the Scotland Act 1998 and the Government of Wales Act 2006. Devolution in Scotland continues to be broader than in Wales, due to differences in the claims to autonomy and powers in these two nations. Nevertheless, the devolution process has evolved through time, and initial differences between the Scottish and Welsh settlements have reduced, chiefly due to the enactment of the Government of Wales Act 2006, as amended by the Wales Act 2014 and the Wales Act 2017.

The devolution settlements of Scotland and Wales operate on a “reserved model”. This means that the Scottish Parliament and the Welsh Assembly have general powers to legislate on any matter within the territory of Scotland or Wales, unless it has been reserved to the UK Parliament (s. 29 Scotland Act 1998; s. 108A Government of Wales Act 2006, as amended by the Wales Act 2017). There are more reserved matters in regards to Wales than to Scotland (Schedule 5 Scotland Act 1998 and Schedule 7A Government of Wales Act 2006) The Northern Ireland devolution settlement is a more complex and wide-ranging one, which sets out transferred matters (within the competence of the Northern Ireland Assembly), excepted matters (where central government retains competence) and reserved matters (where Westminster Parliament has legislative authority, but the Northern Ireland Assembly can legislate with the consent of the Secretary of State).

In all cases, emergency powers are a reserved matter. Thus, had the UK government triggered a response to COVID-19 by means of the Civil Contingencies Act 2004 there would have been a centralised response to the pandemic, i.e. it would have been driven entirely by Westminster. However, the UK government opted not to do this. Instead, the response to the pandemic has broadly pursued an approach based in public health law. Since such matters as health and social services, social welfare, and education are devolved to Scotland, Wales and Northern Ireland, the devolved governments have enjoyed significant competences to craft their own responses to the crisis, enabled by the approach adopted in the Coronavirus Act 2020.

The Coronavirus Act 2020: Levelling Up Public Health Powers

The decision to employ pre-existing legislative frameworks in response to the pandemic resulted in differences among the four nations as to the in the tools available and measures ministers could adopt.

UK ministers, acting for England, and Welsh ministers acting for Wales, could rely on the powers provided by Part 2A of the Public Health (Control of Disease) Act 1984. The 1984 Act, which had been significantly modified by the Health and Social Care Act 2008, provided ministers with wide ranging powers to make regulations to protect public health in the pandemic context. On the other hand, both Scotland and Northern Ireland had their own public health legislation, namely, the Public Health etc. (Scotland) Act 2008 and the Public Health Act (Northern Ireland) 1967, made by their respective legislatures.

One of the objectives of the Coronavirus Act 2020 was to level up the tools and powers across the four nations of the UK, with a view to achieving a degree of consistency in responses. This meant providing similar powers to Northern Irish and Scottish ministers to those contained in the 1984 Act, except in regards to reserved matters. For these purposes, the Coronavirus Act 2020 included Schedule 18, which amends the Public Health Act (Northern Ireland) 1967, providing powers to the Northern Ireland Department of Health to make regulations in response to the pandemic. In addition, Schedule 19 of the 2020 Act authorises Scottish ministers to make regulations “for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland (whether from risk originating there or elsewhere).” (s. 49 Coronavirus Act 2020).

The Coronavirus Act 2020: Expanding Public Health Powers

The Coronavirus Act 2020 also provided further powers to deal with some consequences of the pandemic, thereby supplementing the powers in the 1984 Act to enable ministers to deal with various issues not covered by that piece of legislation. Among them, it is worth mentioning the following ones:

  • Emergency registration of health professional, temporary registration of social workers and emergency volunteers, in order to address the shortage of health professionals and social workers (ss. 2-9, and their corresponding Schedules 1-7);
  • Powers in relation to potentially infectious persons to provide for their detention, isolation and screening and other appropriate restrictions (s. 51 and its corresponding Schedule 21);
  • Powers to prohibit or restrict events and gatherings, and to close premises, on public health grounds (s. 52 and its corresponding Schedule 22);
  • Powers to temporarily close schools and registered childcare providers (ss. 3738 and their corresponding Schedule 16);
  • A statutory authorisation to enable the use of video and audio technology in courts and tribunals (sections 54-57 and their corresponding Schedules 23-27, insofar as England, Wales and Northern Ireland are concerned. For Scotland, see Coronavirus (Scotland) Act 2020 Schedule 4), among others matters.

In most of these cases, the 2020 Act provides these additional powers to England, Wales, Scotland and Northern Ireland. The Act contains detailed Schedules providing powers for ministers and other officials on each of the four nations. In some cases, there are provisions only applicable to England and Wales, as in the case of video and audio technology[1] or protection measures from eviction in respect to residential tenancies. This is due to the fact that civil and criminal procedures, as well as the law of lease, are devolved in Scotland and Northern Ireland.

The Coronavirus Act 2020: Reserved Matters

Finally, there are a few instances where the powers deal with reserved matters, and therefore, are given to UK ministers. An example of this is the power to suspend port operations (s. 50 and Schedule 20). The minister can give a written direction to a person concerned in the management of a port arrival, either airport, seaport or international rail terminal in the UK, requiring to suspend its operations, if certain statutory conditions are met (as set out in Schedule 20, s 1 (1)(2) Coronavirus Act 2020). A second example is the power to postpone a recall petition under the Recall of MPs Act 2015, since this is a matter concerning the UK Parliament (s. 62 Coronavirus Act 2020).

In sum, due to the UK government’s decision not to trigger the Civil Contingencies Act 2004, instead to employ powers under the Public Health (Control of Disease) Act 1984, and to level up the powers across the four nations, the three devolved nations are managing emergency responses to the pandemic with significant degrees of autonomy. Hence, the most significant public health measures adopted to deal with the pandemic have been adopted by regulations issued by each devolved government. This includes:

  • general and local ‘lockdowns’ and other restrictions on freedom of movement;
  • restrictions on travel, including international travel, travel within each nation, and travel between nations;
  • restrictions on public and private gatherings and events, indoors and outdoors;
  • the closure of schools and nurseries, shops and other non-essential business;
  • mandated mask-wearing;
  • screening, isolation and quarantine requirements.

Cooperation and intergovernmental relationships

A final point to note is that despite the damage inflicted to intergovernmental relationships and institutions by the Brexit process, the Coronavirus Act 2020 was the result of close cooperation between central government and the devolved governments. This is evident from statements made before the devolved legislatures by the relevant ministers and/or memorandums on the Legislative Consent Motions (Scotland | Wales | Northern Ireland). These note that the devolved governments had the opportunity to contribute to the bill’s drafting, as well as from the Legislative Consent Motions issued by the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly

[1] Although in this case there is a specific schedule dealing with Northern Ireland (schedule 27).

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