Nicola Sturgeon’s ‘power grab’ legislation, which takes the extraordinary step of making permanent her emergency Covid powers – including the power to shut schools and make laws “directly or indirectly imposing restrictions or requirements” on people or premises – may be unlawful and open to challenge in the courts for breaching parents’ and pupils’ human rights, Scotland’s Children’s Commissioner has said. The Telegraph has more.
Bruce Adamson said the emergency powers introduced in 2020 represented “some of the most serious interferences” with human rights imposed by Government since the Universal Declaration on Human Rights was adopted more than 70 years ago.
The Children and Young People’s Commissioner Scotland said any such powers were only lawful if they were “time limited” and expressed “considerable concerns” that the Coronavirus (Recovery and Reform Bill) would make them permanent.
In extraordinary evidence to a Holyrood inquiry, he concluded that “even if not used, they may therefore not be lawful under the terms of Article 15” of the European Convention on Human Rights.
He warned the Bill would give ministers an extraordinary range of powers “for substantial interference into children’s right to an education, as well as a wide range of their human rights”. …
The Commissioner repeatedly expressed concerns about the Government allowing the powers to permanently sit “on the books” for future public health emergencies, saying this “reduces the opportunity for parliamentary scrutiny” if they were to be used.
Although similar powers were hurriedly introduced at the start of the pandemic, he said they were largely unused, before concluding: “We are therefore unconvinced their inclusion in legislation on a permanent basis is proportionate.”
The Bill gives ministers wide-ranging powers to respond to public health measures, similar to the temporary ones they have used during the pandemic, which have recently been extended by another six months to September 24th.
Among the host of powers the legislation will give Scottish ministers on a permanent basis are the ability to shut schools and to make laws “directly or indirectly imposing restrictions or requirements” on people or any premises.
But a public consultation on the plans published alongside the Bill showed overwhelming opposition to it, with respondents complaining of an “undemocratic overreach of government power which many felt breached human rights”.
I would say that, frankly, if a general law giving the Government carte blanche to impose ill-defined “restrictions” on people without reference even to Parliament doesn’t breach human rights it’s hard to know what does. But in fact, the Scottish Government has claimed the Bill would only bring “Scotland into line with England and Wales where these powers are already permanent”. This is referring of course to the Public Health Act 1984, provisions added in 2008 to which – unbeknown to anyone until March 2020 – gave the Government just such draconian powers. At least, that’s what the Government decided was the case, and outrageously the courts agreed, much to the consternation of former Supreme Court Justice Lord Sumption.
That’s no reason to repeat the error in Scotland, though. Hopefully a court would indeed find this new legislation in breach of human rights – though why courts have not found the Public Health Act already in such breach would then be something of a mystery. Perhaps Scottish courts will see things differently (are human rights different in Scotland and England?). In any case, this legislation needs to be scrapped, and the Public Health Act needs to be put “back in its box“, as Lord Sumption puts it. The legacy of this pandemic mustn’t be permanent draconian legislation.
Worth reading in full.