From Contrary:
Reading through a twitter thread by David Allan Green regarding the emergency powers legislation – note that it is a statutory instrument based on another act (so it is not a stand alone law) and is not indefinite and must be proportionate – but obviously we have to have our own version in Scotland and I’ve still to find it, though there is a tweet here commenting on the key difference:
Overall – this is an exceptionally illiberal legal regime – justified by the public health emergency, but illiberal all the same
The biggest legal restrictions on fundamental rights since WWII
But yet it it’s one with vague exceptions
This is not a happy combination
James Macfarlane
Key difference between the English and Scottish regulations is that the latter puts social distancing on a statutory footing:
See James Macfarlane’s other Tweets
Listening to policeman on the radio ‘compliance so far has been brilliant’, well done folks.
Talking-up Scotland 'Albatraz' 
You will know this John it is a classic tactic of the English media to classify any bad news as ‘UK’ when in fact they mean English especially when brutally exposed as in this case by the other devolved Goverments.
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You haven’t found “our own version in Scotland” because it doesn’t exist. Although Mike Russell made a point of reserving the right of the Scottish Government to take its own approach, the UK Coronavirus Bill was adopted unchanged.
“Of course the Scottish Government has made clear that – while we acknowledge the benefits of alignment across all 4 UK nations – it is also important that devolved matters can be fully analysed and considered against the emerging situation here in Scotland, and the specific measures and action that we and others need to put in place to respond to that.” – Mike Russell https://www.gov.scot/publications/statement-uk-government-coronavirus-bill/
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John, I think I might need to resign from my position of Compassion Correspondent, I am really struggling not to think unsympathetic, bad thoughts about Boris being tested positive for corona virus…
On to DAG’s review of the legislation, some points:
“First things first
This is a “statutory instrument” not an Act of Parliament – it is so-called secondary legislation made under the Public Health (Control of Disease) Act
1984
This is legally significant”
“First, it means that the regulations can only be used for public health purposes, otherwise they are ultra vies the Act
Second, SIs (secondary instruments) can be challenged in court and quashed if they are ultra vires”
“This means that if the regulations persist longer than the public health emergency – or are not rationally connected to the threat faced – then a court can rule them unlawful”
“We now move to the regulations
First stop, regulation 3
This provides for the “emergency period”
This can end when the government decides the regulations are no longer needed, and this question needs to be reviewed at least every 21 days
There will be a review on 16 April”
So even though there are restrictions to our liberty, we will not be living in a police state for two years – that’s how I read it anyway.
Some other points from DAG:
“ps 4
Welcome things about the Regulations:
1. SI not an Act – so more open to legal challenge
2. Reasonable excuses not a closed list
3. Fixed Penalty Regime means not automatic criminalisation in straightforward cases”
“ps 5
Am still wondering what “basic necessities” means as opposed to “necessities” and suspect Parliamentary Counsel must have watched Jungle Book earlier in the day before drafting the regulation”
I am wondering this too, I will be running out of sweeties soon, and to me there are essential necessities, but will I be arrested because a police officer has a different opinion…
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Don’t worry, Contrary. In Scotland you will be dealt with by SCOTSQUAD. Chief Constable Meikleson has them on the ball. There to serve the people not to oppress them.
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Compassionate Correspondent.
No one wants any person to contract this disease, but………
Boris has mild symptoms so far, and if that is the case, all the better for Boris. Because…….
Boris is one of the laziest politicians on the planet, rarely leaving London, seldom going to the Commons, often disappears after “working” for two days in a row.
Now, he will can rumble out his bed at gin o’clock, make a video and then go back to bed.
Oh, but the media adore him—a “cult of personality” has built up around him, protecting him from any scrutiny or criticism.
BBC Scotland website. *Coronavirus in Scotland…..Boris Johnson blah, blah, blah”. Pathetic cringe.
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If No10 was a cruise ship, would you let it dock ?
And…if Boris then had an Albatross tied round his neck, what would this cruising ghost ship be called——–after Brexit?
The Flying………………………………………?
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… very good questions gavin, very thought provoking,,,
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Contrary, in these troubled times, “thought” is the last thing on my mind!
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😀
Verbal diarrhea then?
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Daftman?
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Must say I remain confused. Whilst there have been new Statutory Instruments there has also been the passage of the Coronavirus Act 2020. The full content of this Act can be found here:
https://www.legislation.gov.uk/ukpga/2020/7/contents/enacted.
I remain confused as to how an Act of the Westminster parliament can alter a pre-existing Act of the Scottish Parliament as this 2020 Act would appear to do. For example, from the text of the Coronavirus Act 2020 there is this:
“34. Temporary disapplication of disclosure offences: Scotland
(1)The Scottish Ministers may issue a direction that disapplies or modifies—
(a) section 35 of the 2007 Act (organisations not to use barred individuals for regulated work);
(b) section 36 of the 2007 Act (personnel suppliers not to supply barred individuals for regulated work).
(2) In this section and section 35, “the 2007 Act” means the Protection of Vulnerable Groups (Scotland) Act 2007 (asp 14).”
This 2007 Act is an Act of the Scottish Parliament. So there is a change being made to existing Scottish parliamentary legislation by a subsequent Act passed in Westminster.
The Coronavirus 2020 Act is also modifying existing Scottish Statutory Instruments e.g. in the area of health:
“Emergency arrangements concerning medical practitioners: Scotland
Schedule 3 contains temporary modifications of—
(a) the National Health Service (Primary Medical Services Performers Lists) (Scotland) Regulations 2004 (S.S.I. 2004/114),
(b) the National Health Service (General Medical Services Contracts (Scotland) Regulations 2018 (S.S.I. 2018/66), and
(c) the National Health Service (Primary Medical Services Section 17C Arrangements) (Scotland) Regulations 2018 (S.S.I. 2018/67).”
How does this work legally/constitutionally? Why are any necessary changes to Acts of the Scottish Parliament and Scottish Statutory Instruments not being passed in Holyrood but in Westminster? What am I missing here? Calling out for an expert!
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I’m sorry we have used up our allocation difficult reads today.
Marketing Manager
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I agree with John, what an awkward question.
Well, as I (barely) understand it – Holyrood can pass Westminster legislation or not – if the Act applies to the whole of the UK, then Holyrood must implement it into Scottish Law within the confines of Scots Law. So when Holyrood passed the legislation the other day – then yes, they just agreed to amend articles of other laws I guess. (you’d think they’d have to put them through the wringer too then, but… oh, lets just ruminate on it over the weekend shall we?)
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