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Written on 30 Apr 2020

Devolved governments have powers to end lockdown on their own

Channel 4 News FactCheck discusses devolved governments powers to end lockdown. Could Scotland, Wales or Northern Ireland ease lockdown restrictions before other parts of the UK?

That’s the question many commentators have been asking after the Scottish and Welsh administrations published documents setting out what ending the lockdown in those nations might look like.

Scotland’s “framework for decision-making” is the start of a “grown up conversation with the public” Nicola Sturgeon said. The Welsh first minister, Mark Drakeford, revealed his government’s strategy today – in which lockdown measures could be lifted in three phases “like a traffic light in reverse”. Both leaders stressed that it would be some time before life would return to normal.

So far, all the nations of the UK have been working together on a shared coronavirus strategy. But what if Wales, Scotland or Northern Ireland want to end lockdown without the agreement of the UK government? Can the devolved administrations decide to go it alone? Can Westminster stop them?

We’ve been speaking to some of the country’s leading constitutional experts to find out.

Devolved powers

The Westminster Parliament is ultimately sovereign over the whole United Kingdom – but significant powers are devolved to Edinburgh, Cardiff and Belfast. Health policy is one of those areas.

Jess Sargeant of the independent Institute for Government think-tank explains, telling FactCheck: “This means that the devolved governments could take different decisions to the UK government on how and when lifting lockdown in their area.”

“Devolved ministers can use the same powers they used to impose lockdown to change or remove restrictions” and there’s no need for Westminster to make any legislation to allow this to happen, she says.

Different regulations

Within each devolved nation, the legal basis of the lockdown is different – as Aileen McHarg, Professor of Public Law at Durham Law School told FactCheck.

“The Scottish and Welsh Ministers are acting under UK legislation [the Coronavirus Act 2020 and the Public Health Act 1984, respectively], whereas the NI Executive is acting under legislation made by the old Northern Irish Parliament”, she says.

Looking specifically at the Scottish regulations, Professor McHarg points out that they contain a “review clause” which, by her interpretation, mean “the Scottish ministers are bound to end the lockdown as soon as they consider it no longer necessary”. She identifies similar provisions in the Welsh and Northern Irish regulations.

If the devolved administrations decided to end lockdown earlier or in a different way to the route chosen by Westminster, it “would not, therefore, be a question of ‘overruling’ the UK government, as each devolved administration has their own powers to determine the nature and extent of the lockdown for their own territory”.

Professor Michael Kenny, who is Professor of Public Policy at the University of Cambridge told FactCheck: “Most of the key decisions relating to lockdown, and when and how it might be released, lie in the hands of the devolved administrations so they would not need to seek permission from the UK government about them.”

Could Westminster force the issue?

What would happen if the UK government or Parliament tried to block a decision by the Scottish, Welsh or Northern Irish administrations to lift or ease lockdown?

Jess Sargeant again: “The UK’s constitutional arrangements mean that the UK Parliament retains the power to legislate in devolved areas. So in theory, the UK Government could overrule the devolved administrations”. But, she says, “this looks unlikely to happen at this point”.

Professor Kenny points out: “For the most part, [the devolved administrations] and their scientific experts have been consulting jointly with the UK government and its experts, and have followed a common approach to lockdown.”

But, he says “there have been some small differences in how it has been implemented, and the Scottish government has indicated that it is prepared to develop a more independent approach to the management of Scotland’s exit from it, if the evidence demands that.”

What do the devolved administrations say?

A spokesperson for the Welsh government confirmed that they have not set out a definitive timetable for easing the lockdown restrictions.

A spokesperson for the Northern Ireland executive told FactCheck: “The Executive’s clear focus at this time is the ongoing health risk from Covid-19. The restrictions in place are making a real difference in protecting people and saving lives, and they need to continue. The Executive will continue discussions and making preparations for how and when we can move into a recovery phase when the time is right, taking account of all relevant evidence and advice.”

The Scottish government was contacted for comment.

Channel 4 News FactCheck 24 April 2020 by Georgina Lee