The Commissioner responds to the Scottish Government Consultation on Covid Recovery.
The Covid-19 pandemic created unprecedented challenges for public services and for Scotland as a whole. The emergency powers put in place in response to the pandemic represented some of the most serious interference with the human rights of the general population since the Universal Declaration on Human Rights was adopted more than 70 years ago.
Both the pandemic and the restrictions put in place to combat it have had a disproportionate impact on children, and particularly on those children whose rights are already most at risk. Restrictions impacted on almost every aspect of children’s lives and, as we found in our Independent Children’s Rights Impact Assessment (CRIA), interfered with their enjoyment of the full range of rights contained within the UNCRC.
As we highlighted in our briefings to MSPs in relation to the UK Coronavirus Act and the two Scottish Coronavirus Acts, international human rights frameworks recognise States’ need for flexibility in a time of national emergency. This is acknowledged in Article 15 of the European Convention on Human Rights (ECHR) and Article 4 of the International Covenant on Civil and Political Rights (ICCPR) but emergency powers must be lawful, necessary, proportionate and time limited. And they must be limited to the extent strictly required by the situation.
The proposals in this consultation broadly fall into two categories. Firstly, there are proposals to develop and embed new ways of working in public services, building on the innovation which occurred in response to the pandemic. Whilst we are generally supportive of this approach, each individual decision will need to undergo a CRIA to ensure that implementation does not adversely impact children’s rights. For example, online hearings in the Children’s Hearings system and in court and tribunal proceedings have the potential to improve the ability of some children and their families to participate in decision making, however during the pandemic they have also present barriers to individual’s rights, to access to justice and procedural fairness.
All decisions to change statutory processes and procedures must properly take account of children’s rights. A decision to hold a hearing online should be based on the individual child’s needs, rights and best interests, and not on organisational exigencies. There must be comprehensive impact assessments on these proposals, to ensure that all measures are compatible with children and young people’s legal and human rights, under both domestic legislation, such as the Equality Act 2010, and international law and standards such as the European Convention on Human Rights (ECHR), the UN Convention on the Rights of the Child (UNCRC) and the UN Convention on the Rights of Persons With Disabilities (UNCRPD).
We are more concerned about the second category of proposals, which relate to the extension of emergency powers beyond March 2022 and, in some cases, the passing of primary legislation to make these powers permanent. These powers represented a serious, albeit necessary response to an unprecedented situation. We broadly supported their introduction at the time. They were, in the main, proportionate, given the life-threatening gravity of the pandemic, and the lack of information about the impact it would have on children and young people. That they were introduced via Acts of Parliament ensured they were lawful. And they were time limited – with the Scottish Government having to return to the Scottish Parliament to renew them after set periods of time.
It is not appropriate for emergency powers such as these to remain ‘on the books’ for use by any future government without prior reference to Parliament. It is particularly concerning that in at least one case (educational closure direction) these proposals include powers that were not used during the current pandemic. Unused (and therefore unnecessary) provisions cannot justifiably be extended.
It is essential, in human rights terms, that emergency powers are subject to sufficient scrutiny to ensure they are necessary and proportionate in the context of the specific situation in which they are to be applied. Permanent powers which permit serious interference with human rights, by definition, do not meet the requirement to be time limited. Even if not used, they may not be lawful under the terms of Article 15 of the ECHR.
Rather than having powers ‘on the books’ or ‘just in case’, it may be appropriate for government to have draft legislation prepared, and kept under review, in anticipation of a future emergency. Before it is enacted, it is essential this is subject to appropriate parliamentary scrutiny, public engagement, and support, in accordance with the law.
Both the Scottish and UK Parliaments were able to pass legislation to meet the challenges presented by the pandemic on an emergency basis in March 2020. Since that time, both have improved their capacity to operate on a virtual basis and they are doubtless now better prepared for future emergencies as a result.
It will, as noted in the consultation, require primary legislation to give permanent effect to the emergency powers introduced by the three Coronavirus Acts. It is our intention to engage with the parliamentary process on the specific proposals in any future bills.
 CYPCS. Independent CRIA. https://cypcs.org.uk/coronavirus/independent-impact-assessment/
 CYPCS. Our Coronavirus Work. https://cypcs.org.uk/coronavirus/our-coronavirus-work/
 Though we note this is not entirely uncontested