SNP 'power grab' fears over post-Covid emergency law plan

Many of the capabilities outlined are similar to those the Scottish Government was given on a temporary basis earlier in the Covid pandemic. They include the power to introduce lockdown restrictions and bar access to schools.

However, critics claim that placing such measures permanently in statute may bring legally problematic intrusion into parental choice and lead to the micromanagement or fettering of universities and colleges.

Oliver Mundell, of the Scottish Conservatives, said the move could damage relations between education leaders and the Government by concentrating "too much power in the hands of ministers”.

READ MORE: Universities and colleges told to act as 'students flout rules'

Higher education (HE) bosses have also been strongly critical, warning that potential regulations made under the new Coronavirus (Recovery and Reform) (Scotland) Bill would put ministers in the position of deciding whether specific buildings remain open or closed, whether courses are delivered in-person, online or on a blended basis, and even whether students need to be moved to another institution to continue their studies. They insist that no government would ever be “competent” to set specific requirements at such a granular level.

The fears have been echoed by college leaders, who stress it would be harmful for ministers to impose measures while working in isolation and “at a distance”. Paul Little, Vice-Chair of the College Principals Group at Colleges Scotland, told MSPs: “I believe that the regulations as proposed are completely unnecessary. They are simple planning overreach.”

Meanwhile, the office of the Children and Young People’s Commissioner Scotland (CYPCS) has highighted the potential for legal challenges and says there are questions over the proposed legislation’s lawfulness under Article 15 of the European Convention on Human Rights.

Addressing Holyrood’s Education, Children and Young People Committee on Wednesday, Megan Farr, CYPCS policy officer, said: “We acknowledge that the Government have put tested proportionality and necessity into their proposals, but we’re still concerned that that’s left up to Scottish ministers.

“I think that the parliamentary scrutiny that both this parliament and Westminster were able to put in place when the emergency legislation was passed… that level of scrutiny was very important at the beginning of the pandemic.

“Our concern is that, without the level of parliamentary scrutiny that the emergency legislation received last time round, there’s a real risk that a future government who would have these powers – because they’re not time-limited – could bring in and force quite significant interferences with human rights, and particularly with children’s human rights in respect of issues around youth justice and around education, without that level of scrutiny to ensure that they are proportionate, necessary, time-limited and lawful.”    

Megan Farr, policy officer for the Children and Young People's Commissioner Scotland, set out a range of concerns.

She added: “Some of the proposals in the current Bill may also breach other rights and, in particular, there are a couple of issues that link into Article 8 rights in terms of private and family life.

“The two specific examples are around directing individuals to attend specified education establishments. Parents have a duty to educate their children, but they also have a right to choose how that happens. So, there is a risk there that could be open to challenge.

“The other one, actually, is around probably what’s a relatively obscure one and that’s about childminders, who usually work in their own homes, and those are usually homes that also contain children - and giving the government the power to legislate what happens in the homes of individual children.”          

Tertiary education leaders have insisted that collaboration during the pandemic shows the powers set out in the proposed Bill are not needed.

Alastair Sim, Director of HE representative body Universities Scotland, told MSPs: “I think guidance has worked and partnership has worked very well, so we don’t see an absolute need to legislate.

“But if Government is absolutely minded to legislate, I think they should do so in a way that is much more with the grain of what’s worked, where they can set out general requirements and make sure that the granular implementation of that is done by the people on the ground who know how to do it.”   

READ MORE: Scottish universities want ministers to back off over Covid rules

Mr Little also suggested that moves to put the proposed powers on the statute books were a distraction from the Covid-linked “crisis” engulfing Scottish education.

He added: “What this particular Bill doesn’t do is it doesn’t deal with any of the aftermath or any of the urgencies.

“Presently, the college sector is facing over £50 million of potential cuts. We’re not talking about that. We’re talking about the potential for a future pandemic but we’re dealing with the real crisis in education just now.       

“I would prefer… to talk about how we can mitigate against lost learning, how we can support the very real self-harm and attempted suicides amongst our student populations as they deal with mental health. [Distraction] by this present set of regulations won’t allow us the concentration that we’re going to need, as I said, to deal with that lost learning and, indeed, to deal with real, day-to-day learning.”  

Oliver Mundell, of the Scottish Conservatives, said the proposed legislation was "not fit for purpose".  Mr Mundell said: “It is increasingly clear from the damning evidence of colleges and universities that this legislation is disproportionate, unnecessary and not fit for purpose. 

“We heard clearly that this SNP power grab sets a dangerous precedent and risks damaging the relationship between education and the Scottish Government by placing too much power in the hands of ministers.

“Worse still, there are question marks over its lawfulness, and this legal uncertainty could end up with the SNP Government being dragged through the courts. Scottish universities and colleges are right to question why the legislation is needed in the first place, given the SNP did not have to impose their powers on higher and further education at the height of the pandemic. 

“Extending these powers also contradicts the SNP’s new strategy for living with Covid, which focuses on personal responsibility rather than blanket restrictions.”

A Scottish Government spokesman said: “Ministers worked successfully in partnership with institutions throughout the pandemic and would continue to do so in the event of a future pandemic or public emergency.

"The proposed powers are broadly similar to the educational continuity powers currently in the UK Coronavirus Act. They could only be used after ministers had regard to the advice of the Chief Medical Officer, and where they are necessary and proportionate, to ensure swift co-ordinated action in relation to protect public health and ensure the continuity of educational provision.

“Ministers thank the Children and Young People's Commissioner for his submission. His comments, and those from other stakeholders, will help inform the Government’s thinking as the Bill progresses through Parliament. Article 3 of the United Nations Convention on the Rights of the Child means that the best interests of the child must be a primary consideration in all decisions and actions that affect children.”