Devolution

Question 1

What Type of State?

Answer 1

• Where should governmental power reside?
• In a democracy, the answer to such a question must ultimately stem from the sort of arrangements that are considered legitimate by the people.
• There is great diversity of practice internationally
• States with a strong sense of shared identity and destiny = a highly centralised system of government is often desired.
• Highly centralised systems often found where the population is homogeneous in cultural, linguistic, ethnic, and/or economic terms.
• But where such bonds are weaker, the architecture of the state might be commensurately looser.
• People may accept central authorities doing some tasks (defence, foreign policy etc.) while demanding regional governments to represent and serve their diverse interests and outlooks.
• Also, peoples within a state may occasionally conclude that their interests are so distinct (or even conflicting) and affinities so lacking that they should go their separate ways entirely.

Question 2

Devolution in Scotland

Answer 2

• A referendum on Scottish devolution was held on 11 September 1997, with 74% voting in favour of a Scottish Parliament
• Results in UK Westminster Parliament enacting the Scotland Act 1998.
• Scotland Act 1998 amended in 2012 and 2016
• The Scotland Act 1998 provides for a Scottish government of Ministers and a Scottish Parliament to which they would be accountable.
• Powers of the Scottish Parliament and Scottish Government derived from Scotland Act 1998

Question 3

The Scottish Parliament

Answer 3

• The Scottish Parliament has full legislative powers over devolved matters and its laws are known as ASPs (Acts of the Scottish Parliament).
• There are 129 Members of the Scottish Parliament (MSPs).
• These are divided into 2 types:
  
  1. 73 constituency MSPs who are elected on a ‘first-past-the-post’ system
  2. 56 regional members
• There is no difference between the roles played in the Scottish Parliament by MSPs once elected, however they were elected.

Question 4

The Scottish government

Answer 4

• The Scotland Act 1998 created a Scottish government consisting of the First Minister, other ministers appointed by the First Minister, and the Lord Advocate and the Solicitor General for Scotland. These are referred to collectively as Scottish ministers.
• The Scottish government is responsible for functions of government within Scotland as far as they extend to devolved matters.

Question 5

Scotland Act 1998

Answer 5

• Devolution to Scotland operates on a “devolved powers” model
• The Scottish Parliament possesses general legislative competence = Scottish Parliament authorised to enact legislation on any issue, subject to certain exceptions.
• Scottish Parliament is capable, within their legislative competence, of amending, repealing, and replacing Acts of the UK Parliament insofar as they apply to Scotland
• Scotland can therefore pursue fundamentally different policy directions from other parts of the UK in areas of devolved competence
• BUT see limits upon Devolved competence

Question 6

The Limits of Legislative Competence under the Scotland Act 1998

Answer 6

• Section 28(1) Scotland Act 1998 (Acts of Scottish Parliament) - Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.
• Section 29 (1) Scotland Act 1998 (Legislative competence) - An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
• Section 29(2) Scotland Act 1998 (Legislative competence) - A provision is outside that competence so far as any of the following paragraphs apply—(a)it would form part of the law of a country or territory other than Scotland…(b)it relates to reserved matters,(c)it is in breach of the restrictions in Schedule 4,(d)it is incompatible with any of the Convention rights
• Section 29(2) Scotland Act (legislative competence) - For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined…by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

Question 7

Schedule 5 Scotland Act 1998 – Reserved Matters

Answer 7

• Reserved matters in Schedule 5 include:
  
  • the Crown, including succession to the Crown and a regency;
  • the Union of the Kingdoms of Scotland and England;
  • the Parliament of the United Kingdom;
  • foreign affairs, defence, international development;
  • the Civil Service;
  • financial and economic matters;
  • immigration and nationality;
  • misuse of drugs etc.

Note that all other powers are Devolved…

Question 8

Schedule 4 Scotland Act 1998 – Protected Enactments

Answer 8

• In addition to Schedule 5 Reserved Matters, there are further restrictions on Scottish legislative competence in Schedule 4
• Schedule 4 to Scotland Act 1998 (Protected Enactments)
• Protected Enactments include things like the Human Rights Act 1998
• An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the Human Rights Act 1998
• Are there other restrictions on Scottish Parliament competence beyond Schedules 4 and 5?
• E.g. Common Law rights? Axa Insurance (2nd semester)

Question 9

devolved matters

Answer 9

• health and social work;
• education and training;
• local government and housing;
• justice and policing;
• agriculture, forestry and fisheries;
• the environment;
• tourism, sport and heritage;
• economic development and internal transport

Question 10

Parliamentary Sovereignty

Answer 10

• Devolution does NOT formally alter the principle of Westminster parliamentary sovereignty
• UK Parliament can still pass legislation for all parts of the UK, including in relation to devolved policy areas.
• Section 28(7) Scotland Act 1998 – “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”
• BUT such action would undermine purpose and spirit of devolution

Question 11

Sewell Convention

Answer 11

• Sewel Convention - UK parliament “will not normally legislate with regard to devolved matters without the consent” of the devolved legislatures”
• The convention applies when UK legislation:
  
  • changes the law in a devolved area of competence
  • alters the legislative competence of a devolved legislature
  • alters the executive competence of devolved ministers or departments.
• Scotland Act 2016 amends Scotland Act 1998 and inserts Sewel Convention into Act
• Section 28(8) Scotland Act 1998 – “But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
• This language reflects the Sewel Convention, but it does not transform the political Sewel Convention into a legal constraint on Westminster’s power.

Question 12

Scottish Independence Referendum

Answer 12

• 2014 Scottish Independence Referendum held with the explicit consent of the UK government (and agreement of Westminster Parliament)
• In 2013 an Order in Council was made under section 30(2) of the Scotland Act 1998 by UK government
• The Order in Council modified the definition of reserved matters in Schedule 5 to the Scotland Act 1998.
• The Order in Council provided that a referendum on the independence of Scotland from the rest of the United Kingdom was NOT reserved if specified requirements were met
• This enabled the Scottish Parliament to legislate for the holding of a referendum on independence.
• Following Order in Council, Scottish Parliament passed Scottish Independence Referendum Act 2013

Question 13

Problems Created by Brexit

Answer 13

• Politics: Scotland and Northern Ireland (Remain); England and Wales (Leave)
• UK left the Single Market and Customs Union
• UK no longer bound by EU rules
• Scottish Government and Parliament take different view on EU Membership from rUK
• Can Scotland follow EU law in areas of devolved competence?
• Demand for Second Independence Referendum?
• Consent of Westminster needed?

Question 14

A Second Independence Referendum? UK Supreme Court, 23rd November 2022

Answer 14

• The Scottish Government wishes to hold another referendum on independence.
• UK Government is unwilling to agree to new s30 Order in Council
• Scottish Government wishes to hold a referendum without an Order in Council
• Scottish Parliament will need to legislate for a 2nd referendum.
• Does the Scottish Parliament have power to legislate for the holding of a referendum on Scottish independence?
• Reference by the Lord Advocate, the senior Law Officer of the Scottish Government, to UKSC

Question 15

UKSC Judgment - the key question

Answer 15

• Does legislation providing for a referendum on Scottish independence “relate to” a reserved matter?
• Does such legislation “relate to” the Union of the Kingdoms of Scotland and England” and/or “the Parliament of the United Kingdom” in Schedule 5 Scotland Act 1998?
• If yes, the legislation is outside legislative competence.
• So the critical question is…
• Does the proposed Referendum Bill relate to the Union of the Kingdoms of Scotland and England or the Parliament of the United Kingdom?

Question 16

Arguments of UK Government

Answer 16

• Schedule 5 ensures matters of UK interest remain under UK Parliament’s responsibility.
• A referendum on independence directly impacts the Union, a reserved matter.
• The Referendum Bill’s purpose is inferred as seeking independence.
• While the bill doesn’t automatically enact change, its political impact is significant.
• A “yes” vote would pressure the UK to negotiate independence.
• The UK Parliament couldn’t easily disregard a clear public mandate.
• A “yes” vote would catalyze momentum towards Scottish secession.
• The referendum’s purpose aligns with UK Parliament’s sovereignty.
• Scottish secession ends UK Parliament’s authority in Scotland.
• Thus, the referendum exceeds legislative competence regarding reserved matters.

Question 17

Arguments of the Scottish Government

Answer 17

• The Referendum Bill doesn’t concern the UK Parliament directly.
• It establishes an advisory referendum without limiting the UK Parliament’s powers.
• While Schedule 5 aimed to reserve UK-wide concerns to Parliament, an advisory referendum doesn’t remove the Union issue from Parliament’s jurisdiction.
• “Relates to” in Schedule 5 requires a significant connection to a reserved matter.
• A referendum needs a direct impact on a reserved matter to be considered related.
• The link between an advisory referendum and a reserved matter isn’t sufficiently strong.
• The Bill’s purpose is narrowly interpreted as gauging Scottish public opinion.
• Thus, it only loosely relates to the Union.
• Speculation surrounds the Bill’s effects.
• Courts shouldn’t engage in such speculation, and it’s inappropriate for the UK Supreme Court to guess Parliament’s response to a “YES” vote.

Question 18

UKSC Judgment

Answer 18

• The Bill undeniably relates to reserved matters, as it pertains to the Union and sovereignty, and its outcome would have significant political consequences.
• the UKSC rejects arguments against the Bill’s relation to reserved matters due to its clear connection to the Union and sovereignty issues, emphasizing the political significance of a referendum on Scottish independence