Covid-19 and Devolved Governance

This post was contributed by Dr Eloise Ellis, Senior Lecturer in Law.

Coronavirus cells

Wherever you are in the world, the current coronavirus pandemic will have had an impact in many ways. From a Public Law perspective, some of the most relevant aspects relate to the various restrictions, from ‘tiers’ to ‘lockdowns’, which have been imposed by states in order to contain and manage the virus and the form which these have taken. In the United Kingdom, this has been interesting, for several reasons. In summary, these are: first, the pace at which secondary legislation has been passed and implemented and thus the more limited role of scrutiny by Parliament; secondly, the changing working practices and procedures of Parliament and Parliamentarians in hybrid and virtual chambers, thirdly, high profile legal challenges which were brought in relation to the restrictions, most notably Dolan & Ors v Secretary of State for Health And Social Care & Anor [2020] EWHC 1786 (Admin) and finally, the subject of this blog post, devolution and Covid-19.

Due to the extremely time-sensitive and largely unprecedented nature of the pandemic, we have seen successive regulations passed with no more than the bare minimum of scrutiny. This has led to challenges and concerns. In many ways, this experience has been a useful and insightful one when it comes to evaluating the respective role of Parliament as a body and its committees. All of this, must of course, be considered more fully in time. In this blog post I want to highlight how and why the pandemic and the legislative response to it has demonstrated clearly the realities and indeed the constitutional challenges of devolution and the existence of four separate nations which make up the UK, in a way which many people may have not previously been aware.

Scottish Parliament - Edinburgh
Scottish Parliament – Edinburgh

Both public health and education are devolved matters and so are the responsibility of the devolved administrations in Scotland, Wales and Northern Ireland which have introduced measures which apply only to their nation. It has been suggested that one reason why the UK Government might have chosen to use powers under the Public Health (Control of Disease) Act 1984 rather than adding them to the new Coronavirus Act (which applied UK-wide) may have been because doing so in this manner allowed for the devolved governments to make their own lockdown laws allowing for more specific and localised decisions.

The majority of the regulations and restrictions imposed as measures to reduce the spread of Covid-19 and contain the virus relate to devolved matters and so each of the four separate nations within the United Kingdom – England, Wales, Scotland and Northern Ireland – have introduced different measures. Most of these measures to deal with the spread of infection have been introduced as secondary legislation via emergency powers in existing legislation. In England and Wales, under the Public Health (Control of Disease) Act 1984 (as amended by the Health Protection Act 2008), in Scotland, under the Public Health etc. (Scotland) Act 2008 and in Northern Ireland under the Public Health Act (Northern Ireland) 1967 along with some new powers under the (UK-wide) Coronavirus Act 2020. There are therefore differences in the secondary legislation across the UK and with these variations comes some confusion. At various times, there has been a greater or lesser degree of co-ordination between them, for example, in the early stages, all four nations contributed to a Coronavirus (COVID-19) action plan. The disparities between the different nations in the UK first became obvious with the easing of the first lockdown back in the late spring and early summer of 2020.

Different restrictions were imposed in terms of ‘support bubbles’ and extended households, requirements for the wearing of face coverings and school closures. The restrictions on gathering – the number of people permitted to socialise – have also varied and been relaxed and tightened at different times across the nations. One notable distinction was that some nations, Scotland, for example, did not include children under 12 in the maximum number of people who could meet under what was commonly referred to as the ‘rule of six’, whereas in England they did.

Thus the pandemic has provided an interesting and topical example of the complexity caused by devolution and the result of there being, at times, quite marked differences in the rules around ‘lockdown’ and other legislative measures.

There will be many lessons to learn from these times but one of these will be the significant progress will be made towards improving the, still relatively young, inter-governmental relations and co-ordination strategies between the four nations which make up the United Kingdom.

You might like to read more about the current restrictions in each of the nations here:

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