SCOTLAND’S top law officer suggesting using sweeping terrorism-related legislation to cope with the pandemic, the Scottish Government has inadvertently revealed.
Lord Advocate James Wolffe QC told SNP ministers the UK Civil Contingencies Act could be invoked to close pubs, clubs and cafes after the police warned they lacked the powers to do so north of the border.
Mr Wolffe said the Scottish Government would have to ask the UK Government to use the law, which was created after the terror attacks on the US on September 11, 2001.
According to official minutes, Nicola Sturgeon did not discount the idea when it was floated on March 20 last year, but said the UK Government was “hesitant” about the law.
The UK and Scottish governments ultimately spent extra time passing their own bespoke Coronavirus Acts at Westminster and Holyrood, with the Scottish version taking another fortnight to bite.
The discussion is revealed in a series of records released by the Scottish Government under freedom of information.
Because they involve Government legal advice, the Lord Advocate’s remarks were redacted.
However the redaction was so amateurish, they were simple to read.
The material covers meetings of Scottish Government Resilience Room (SGoRR) - which bring togethers ministers, medial experts, scientists, the police, councils, and logistics experts - for February and March last year, when the pandemic first exploded in the UK.
The Scottish Government initially refused to release the notes and minutes, arguing ministers’ private discussions had to be protected.
However it backed down after an appeal to the Scottish Information Commissioner.
The records show that as the pandemic struck, Scottish ministers were keen to work with London but also wanted to ensure advice was correctly “branded” to underline the role of the Scottish Government (SG) as well as the UK Government (UKG).
Minutes of the SGoRR meeting of March 2, chaired by Ms Sturgeon, state: “On marketing, the UKG will be issuing new material this week.
“Ministers would like to ensure that we can issue our own SG branded versions as it was important that the Scottish public understood that the advice was from SG as well as UKG.”
Opposition parties said the public would be “baffled” by ministers’ priorities when the fcous should have been the outbreak not “scoring political points”.
The Government last night said it was “entirely appropriate for public information in Scotland to be led by the Scottish Government”, given health is devolved.
The March 20 SGoRR included a discussion of social distancing and isolation measures, with the First Minister “keen to stay ahead of the curve”.
The meeting heard emergency legislation was expected to be laid at Holyrood in the week starting March 30, as well as grim news that working groups had been set up to look at how to “increase capacity in accommodations for storage of bodies should the need arise”.
After a lunchtime SGoRR, a second 7pm meeting was held to “discuss the new measures put in place by UKG to close pubs, clubs and cafes, and SG’s decision to ask Scottish businesses to do the same”.
Chief Constable Iain Livingstone “made the point that there is no legal power for Police Scotland to enforce this new measure and there will be elements of community policing needed. He highlighted that displacement of people moving from pubs/clubs to house parties etc will be a cause for concern”.
Mr Wolffe then echoed the Chief Constable’s concern.
The imperfectly redacted minutes state: “The Lord Advocate reiterated the CC’s point regarding legal power however said this could be done under the Civil Contingencies Act and that Scotland could ask the UK to do this however FM noted that UKG were hesitant to utilise this method.”
Westminster’s Coronavirus Act became law on March 25, but Holyrood’s separate Coronavirus (Scotland) Act took until April 6.
The 2004 Civil Contingencies Act empowers ministers to make emergency regulations if an event threatens serious damage to security, the environment or “human welfare” in the UK or a region f it.
The explanatory notes to the CCA say that events “such as a terrorist attack, disruption of fuel supplies, contamination of land with a chemical matter and an epidemic could satisfy the definition, should they reach the required level of seriousness”.
While sweeping, the CCA also contains a series of safeguards, including parliamentary oversight and, unlike the current system, regulations expiring after 30 days.
The UK Government chose not to invoke the CCA, arguing Covid had been known about for too long to qualify as an “emergency”, and the law could have been challenged in court.
However the Commons Public Administration Committee later said the CCA should have been considered as a “stop gap”, pending greater scrutiny of the bespoke UK Coronavirus Bill, which lacked the safeguards of the CCA.
Other minutes show then Chief Medical Officer Dr Catherine Calderwood dismissed closing schools on March 15, stating: “There was discussion around school closures and the CMO was very clear that the science around this did not justify any closures.”
The same meeting also heard a warning that ministers feared they would need more than 3000 extra beads to cope with Covid patients - it is now just below 2000 patients.
This may help explain the mass transfer of elderly hospital patients into care homes.
The minutes said: “3000 additional beds can be made available by stopping elective surgery but this will not meet the expected demand.
“Elective surgery will be wound down beginning next week. Private hospital capacity has been procured but it should be noted that much of this is already staffed by NHS staff.”
The minutes also suggest ministers wanted to define “underlying health condition” in a way that let more NHS workers return to work.
The minutes of March 20 show the SGoRR heard the number of staff available in the NHS had “dropped significantly” due to self-isolation measures, “particularly due to the fact that many NHS staff have other health conditions”.
The record goes on: “As a result, there is a need to pin down guidance to clarify what is meant by an ‘underlying health condition’ in order for health workers to know if it is safe/
appropriate for them to return to work.”
Sean Clerkin, who obtained the SGoRR records, said: “This is a victory for citizen activists who demand that that all Scottish Government policies and decisions are open, transparent and accountable to the people of Scotland.
“In relation to policy on the pandemic it is clear from the minutes of meetings that the Scottish Government was in lockstep with the Westminster Government on policy on Covid-19, hence the failures both north and south of the border despite the misconceived perception that Scotland has done better than England.
“The minutes also show cancelling all elective surgery to make 3,000 beds available for Covid cases was not considered enough, fuelling suspicions the elderly in hospitals were then dumped into care homes untested.
“The spread of Covid in those Scottish care homes must be investigated by a public inquiry as soon as possible.”
The First Minister has said there will be a public inquiry but has yet to put a date on it.
The Scottish Government declined to comment on the Lord Advocate’s advice.
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