Introduction
Devolution was the most profound change in the government of Scotland for nearly 300 years. In 1707 the Act of Union abolished the separate Parliaments for Scotland and England, and created a single Parliament at Westminster for the whole of the United Kingdom. However Scotland retained many distinctive features in the Union, such as a separate church and legal system. A form of administrative devolution for Scotland was established in 1885 when the Scottish Office was created as a Department of the UK Government. Over time, the Scottish Office gradually assumed responsibility for many of the issues which in England and Wales were dealt with by Whitehall Departments, such as health, education, justice and agriculture, fisheries and farming, and was headed by a UK Cabinet Minister, the Secretary of State for Scotland.
Proposals for devolution for Scotland were first considered by the UK Parliament as long ago as 1913, and were revived by the Government in the 1970s. In 1979 a Referendum was held on proposals by the then Government to establish a Scottish Assembly, but although a small majority voted in favour the proposals did not obtain the support of 40% of the electorate, which had been set as a requirement in legislation before the proposals could be implemented. In 1989 the Scottish Constitutional Convention was established, consisting of representatives of civic Scotland and some of the political parties, to draw up a detailed blueprint for devolution including proposals for a directly elected Scottish Parliament with wide legislative powers. The Scottish Constitutional Convention's Report in 1995 formed the basis of further proposals which were brought forward in a white paper by the Government in 1997. These proposals received overwhelming support in a Referendum on September 11 1997, with 74% voting in favour of a Scottish Parliament and 63% voting for the Parliament to have limited powers to vary the basic rate of income tax. The Scotland Act 1998 sets out the statutory framework of the devolution settlement. Under it the Scottish Government and Parliament came into being on 1 July 1999.
The purpose of this note is to explain briefly the basis of the devolution settlement for Scotland, and how it works.
Establishment of the Scottish Parliament and the Scottish Government
Devolution established the Scottish Parliament with responsibility for devolved matters while the UK Parliament remains responsible for 'reserved matters' in Scotland and is also the sovereign Parliament for the whole of the UK. The Scottish Parliament has full legislative competence (in other words, it can pass both primary and secondary legislation) across a wide range of devolved subjects. The Scotland Act does not set out devolved subjects but instead lists 'reserved matters' for which the UK Parliament retains responsibility. The Scottish Parliament has no competence to legislate on these matters. Devolved matters on which the Parliament can legislate are all those which are not specifically reserved (with certain provisos set out in the Act).
The UK Parliament continues to legislate for Scotland on reserved matters. It remains sovereign, and may also therefore legislate on devolved matters in Scotland. However, in accordance with the Sewel Convention, the Government has adopted a principle whereby "The UK Parliament will not normally legislate in relation to devolved matters in Scotland without the agreement of the Scottish Parliament." The Scottish Parliament can agree the incorporation of legislative provisions affecting Scotland in devolved areas by what is called a 'Sewel Motion'. This enables the Scottish Parliament to agree that Westminster should legislate for Scotland on devolved matters where, for example, it is considered sensible and appropriate to put in place a single UK-wide regime. The Sewel Convention is a guarantor of devolutionenabling the Scottish Parliament to legislate within its competence without the UK Parliament legislating in the same areas without the Scottish Parliament's agreement.
The first Scottish Parliament elections were held in May 1999. The elections were conducted on the basis of combining the traditional first past the post system (to elect 73 constituency members) and a form of proportional representation called the Additional Member System (to elect 56 regional members - 7 for each of the eight regions used in European Parliament elections). The regional seats ensure that each party's representation in the Parliament broadly reflects its overall share of the vote. The outcome of the May 1999 elections (turnout 58%) was as follows:
|
Labour Party |
56 seats |
|
Scottish National Party |
35 seats |
|
Conservative & Unionists |
18 seats |
|
Liberal Democrats |
17 seats |
|
Others |
3 seats |
The Scottish Government (the devolved administration in Scotland) was formed by a coalition between the Labour Party and the Liberal Democrats. These same parties formed a second coalition following the May 2003 election (turnout 49%). The outcome was as follows:
|
Labour Party |
50 seats |
|
Scottish National Party |
27 seats |
|
Conservative & Unionists |
18 seats |
|
Liberal Democrats |
17 seats |
|
Green |
7 seats |
|
Scottish Socialist Party |
6 seats |
|
Others |
3 seats |
The first meeting of the Scottish Parliament was held in May 1999 and it assumed its full powers and was opened formally by Her Majesty the Queen on 1 July 1999. That historic date also marked the transfer of the powers on devolved matters which had previously been exercised by the Secretary of State for Scotland (and other UK Ministers) to Scottish Government Ministers.
Matters which were devolved include:
In September 1999 the Scottish Government published its agreed work programme, entitled Making it Work Together. It consisted of a detailed programme of action, with timed targets, across the range of policy areas for which the Scottish Government is responsible. After the 2003 Election, the Executive published its programme in Partnership for a Better Scotland .
Scottish Parliament
In November 1997 the then Secretary of State for Scotland appointed a Consultative Steering Group (CSG) to develop proposals for the practical operation of the new Parliament. Its membership was representative of the major political parties in Scotland, and of other civic groups and interests. After a period of detailed examination and consultation, the CSG produced a report in January 1999, Shaping Scotland's Parliament. This Report included comprehensive proposals for the working of the new Parliament. Four key principles were identified:
These four key principles were adopted for the establishment of the Scottish Parliament, which is structurally different from the UK Parliament in a number of key ways. For example:
A comprehensive Committee System lies at the heart of the Parliament (8 of the Committees are mandatory). The Committees have power to introduce Bills of their own as well as to scrutinise Executive Bills and conduct 'ad hoc' inquiries. A number of Committee Bills have so far been passed. The Committees also have statutory power to require anyone including Scottish Ministers to give evidence before them and to produce documents in connection with their inquiries. Membership of Committees reflects the political balance in the Parliament.
Before devolution, the UK Parliament typically considered only one or two specifically Scottish Bills each session. In contrast, 62 Bills were passed by the Scottish Parliament in its first session. Of these, 50 were Executive Bills (including 4 Budget Bills), 8 were Member's Bills, 3 were Committee Bills and 1 was a Private Bill. Many of these were important reforms, such as the Adults with Incapacity (Scotland) Act, the Housing (Scotland) Act, and the National Parks (Scotland) Act, are real achievements - and might have been delayed had Scotland not had its own Parliament. Dealing with such a wide range of specifically Scottish issues before devolution would have been difficult due to the crowded legislative timetable at Westminster.
The Scottish Parliament manages an annual budget of around £20 billion (approximately ¿31.25 billion). The Scottish Parliament has the power to vary the basic rate of income tax (currently 22 pence in the pound) in Scotland by up to 3 pence in the pound, but the current administration is pledged not to use this power during the lifetime of the current Parliament. The Scottish Parliament also has control over local authority taxation in Scotland, and can raise revenue by charging fees for certain public services.
Please see www.scottish.parliament.uk for further information.
The UK Parliament
As is stated above, the UK Parliament remains sovereign but has agreed not to legislate in devolved areas without the agreement of the Scottish Parliament. The UK Parliament continues to legislate in reserved areasn Scotland.
Around half of the Bills in the 2001-02 and 2002-2003 Westminster legislative programmes applied to devolved areas in Scotland in key areas such as the confiscation of the proceeds of crime, pensions credit and communications. Most UK bills applied to some extent to Scotland in reserved areas.
There are currently 72 members in UK Parliament representing constituencies in Scotland. The White Paper Scotland's Parliament acknowledged the case to reduce Scotland's representation at Westminster, and the Scotland Act 1998 provided for this. Scottish constituencies at Westminster are likely to be reduced from 72 to around 59, so that Scottish MPs will be elected on the same demographic/numerical basis as the rest of the UK.
The Devolution Framework
The statutory framework for devolution set out in the Scotland Act 1998 is underpinned by administrative agreements between the Government and the Executive, notably the Memorandum of Understanding and four Overarching Concordats (on International Relations, the EU, Financial Assistance to Industry and Statistics) . There are also more detailed bilateral Concordats between the Scottish Government and individual Government Departments. The Concordats are non-legally binding agreements whose purpose is to facilitate good relations between the administrations. They are underpinned by Devolution Guidance Notes (DGNs) published by the Department for Constitutional Affairs after consultation with the devolved administrations, and by the Statement and guidance on Devolution in Practice, which was re-issued by the Prime Minister and the Leaders of the devolved administrations in October 2002.
Machinery and Practice for Dispute Resolution
Part II of the Memorandum of Understanding sets out arrangements for dispute resolution. These provisions provide a basis for the Government to consider devolved legislation and the actions of devolved administrations and to seek to resolve questions of competence by informal dialogue with those administrations.
The devolution legislation also contains provisions for settling questions of vires - i.e. determining the legal powers of the Scottish Parliament and Scottish Government Ministers - by reference by a Law Officer to the Judicial Committee of the Privy Council (the members of whom include senior judges from Scotland as well as England and Wales). Although the Government is prepared to use these powers if necessary, it sees them very much as a matter of last resort. The Law Officers have not had to refer any cases to the Judicial Committee. Under the Government's programme of constitutional reform it is proposed to transfer this jurisdiction to the new UK Supreme Court.
The Secretary of State for Scotland
The primary role of the Secretary of State for Scotland is to maintain the stability of the devolution settlement and to act as guardian of it. He promotes partnership between the Government and the Scottish Government and between the two Parliaments. At the same time, the Secretary of State continues to represent Scottish interests in reserved matters within the UK Government, advising colleagues about any distinctive Scottish aspects that arise for reasons other than the impact on devolved matters and supporting them in presenting Government policies in Scotland.
Reserved matters include:
The Secretary of State and the Parliamentary Under Secretary of State between them are members of around 20binet Committees and Sub-Committees and are involved on an ad hoc basis as the need arises.
The Secretary of State retains certain limited executive functions, notably in relation to the financial transactions between the Government and the Scottish Government and in relation to parliamentary elections. Scotland Office Ministers also make orders (secondary legislation) under the Scotland Act. These orders are needed, occasionally to amend, and more frequently to implement, Scotland's devolution settlement. 12 Scotland Act Orders were made during 2001-02, 10 in 2002-03, 4 in 2003-04 and so far there have been a further 3 made in 2004-05.
The Secretary of State can also exercise functions under section 35 of the Scotland Act. Under section 35, the Secretary of State may make an Order prohibiting the Scottish Parliament's Presiding Officer from submitting a Bill for Royal Assent, which he has reasonable grounds to believe would be incompatible with:
The Secretary of State may also make an Order under section 35 if he reasonably believes that the Scottish Parliament Bill makes modifications to, and would have an adverse effect on, the operation of the law as it applies to reserved matters. These powers have not yet been exercised, which means that no Orders have been made by the Secretary of State under section 35 of the Scotland Act. The Scotland Office, which supports the Secretary of State, was established on 1 July 1999, following devolution. The Scotland Office works in partnership with the Scottish Government, but is entirely separate from it, remaining part of the UK Government. In June 2003 it became a distinct entity within the Department for Constitutional Affairs.
The Advocate General for Scotland
The Advocate General for Scotland is a Law Officer of the Crown and (as such) principal legal adviser to the Government as regards Scots Law. On matters of common interest to the whole United Kingdom she advises jointly with the other United Kingdom Law Officers, the Attorney General and Solicitor General. She also exercises statutory functions under the Scotland Act. She can refer Bills of the Scottish Parliament to the Judicial Committee of the Privy Council for decisions on their competence, and for this purpose considers Bills as they progress. She can raise proceedings in the courts or the Judicial Committee on devolution issues (i.e. questions whether legislation or acts are within legislative or devolved competence, or whether they are compliant with human rights or EC law). She receives notice of all devolution issues raised in court cases and can intervene in the courts or the Judicial Committee Her functions are entirely distinct from, and independent of, those of the Secretary of State for Scotland.
The Office of the Solicitor to the Advocate General for Scotland (OSAG), within the Department for Constitutional Affairs, provides legal services in Scotland to United Kingdom Government Departments. The Office provides legal advice in relation to Scots law, instructs United Kingdom legislation applying to Scotland and represents Departments in litigation in the Scottish Courts. It acts for most Whitehall Departments, as well as the Scotland Office itself. OSAG also provides support for the Advocate General in carrying out her statutory functions under the Scotland Act.
The Legal Secretariat to the Advocate General for Scotland supports the Advocate General in her work as a UK Law Officer. They co-operate with the Legal Secretariat to the Law Officers (Attorney General and Solicitor General) in the provision of draft advice for consideration by the Law Officers. The Legal Secretariat also assists the Advocate General in relation to Parliamentary and Cabinet Committee business, correspondence, speeches and any other matters that arise.
For further information please visit www.oag.gov.uk.