1 Scotland's Parliament
Summary
The establishment of the Scottish Parliament under the Scotland Act 1998 gave the people of Scotland a direct democratic voice in decisions across a wide range of government activities already administered in Scotland. The devolution settlement explicitly recognised that the responsibilities given to the Scottish Parliament and Scottish Government in 1999 could be changed, and important mechanisms were included in the Act to allow for further devolution.
Introduction
1.1 Before the establishment of the Scottish Parliament a large range of government activity was already administered directly in Scotland by the Scottish Office, under separate arrangements from those for the rest of the United Kingdom. However, democratic scrutiny and legislative power still lay at Westminster. The Scottish Parliament now provides direct democratic oversight and has law-making powers across this range of activities. Importantly, the scheme of devolution adopted in the Scotland Act 1998 - where only specified areas are reserved - allows the devolution settlement to evolve naturally as new subjects arise. The devolution arrangements under the Act also contain mechanisms to develop and expand the competence of both the Scottish Parliament and Scottish Government, and the Sewel convention provides the Scottish and United Kingdom Parliaments with a further means to adjust these responsibilities.
Before devolution
1.2 From the establishment of the office of Secretary for Scotland in 1885, through the transfer of the Scottish Office from London to Edinburgh in 1939, to the final form of the Scottish Office before devolution in 1999, the machinery of administrative government in Scotland developed and grew considerably. However, this growth of a distinctive Scottish executive government was not matched by development of democratic oversight, or a legislative body, based in Scotland. Democratic accountability for the Scottish Office was provided at Westminster by Ministers based in London, distant from their departments and electors, to a Parliament similarly remote. Legislation for Scotland, although distinct in its content and application, was taken through Westminster in the same way as other legislation, and was subject to decisions by a majority constituted across the United Kingdom as a whole.
1.3 This situation was widely held to create a "democratic deficit" in Scotland, as the levers of executive government for the country were in the hands of United Kingdom Ministers, sometimes from a party with little electoral support in Scotland. Laws for Scotland were passed at Westminster according to the overall majority of parties within the United Kingdom, without regard to the views of the majority of Members of Parliament for Scottish constituencies.
1.4 The pressures produced by this situation eventually led to the current devolution settlement. Under the Scotland Act 1998, a Scottish Parliament was established to provide direct democratic oversight in Scotland of the range of activities carried out by the old Scottish Office, and to make laws in these areas.
The Scotland Act 1998
1.5 The Scotland Act 1998 devolved to the Scottish Parliament and Scottish Government (known as the Scottish Executive) all matters that are not specifically reserved to the United Kingdom Parliament and the United Kingdom Government. In practice, the areas devolved largely corresponded to those matters that had previously been assigned to the Scottish Office under the responsibility of Scottish Office Ministers (members of the United Kingdom Government), and administered in Scotland by officials from the Scottish Office. The areas devolved included health, education, justice, local government and agriculture and fisheries.
1.6 The reserved areas were areas in which United Kingdom Government Departments had been and remained responsible for services in Scotland, such as social security, health and safety, and tax collection, or areas in which it was considered important to have a common regime across the United Kingdom, such as employment and business law. In addition, the Act reserved matters considered fundamental to the United Kingdom as a state, such as the Head of State and constitution, citizenship, foreign affairs (including representation at the European Union), security and defence.
1.7 Reserved matters are discussed in more detail in the next chapter.
Changing the devolution settlement
1.8 As the Scotland Act devolves all matters not specifically reserved, new subjects that arise - such as climate change - will fall within devolved responsibility, although they may also have features, such as energy, which are reserved. Even without any specific legislative measures to alter devolved or reserved competence, the devolution settlement will, therefore, inevitably develop over time. The United Kingdom and Scottish Governments, and the Westminster and Holyrood Parliaments, must have a dynamic relationship as devolved and reserved responsibilities evolve in response to events and developments.
1.9 The Scotland Act itself also contains important provisions to allow the devolution settlement to be changed legislatively, so executive or legislative competence can be transferred from the United Kingdom Parliament and United Kingdom Government to the Scottish Parliament and Scottish Government. These powers are exercised after consultation between United Kingdom and Scottish Ministers, and consideration and approval at both Holyrood and Westminster. Under section 30(2) of the Act, Schedules 4 and 5 can be amended to give Holyrood legislative competence over areas previously reserved. Under section 63, responsibilities can be transferred from United Kingdom Government Ministers to Scottish Ministers. "Executive devolution" of this kind does not transfer legislative responsibility to the Scottish Parliament. However, Scottish Ministers can still be held to account by Holyrood for the exercise of these powers.
1.10 It is important to note that the Scotland Act itself does not contain any limitation on the use of these provisions to alter the boundaries of devolution. The Act therefore sets up a system of "unlimited" devolution, in which any reserved matters could be devolved to the Scottish Parliament, using the mechanisms already in the Act. No further primary legislation would be required at Westminster or Holyrood.
Westminster and the Sewel convention
1.11 Under the present form of devolution, the United Kingdom Parliament remains sovereign and is able to legislate even in devolved areas (this is explicitly recognised in section 28(7) of the Scotland Act). It therefore retains the general power to make laws for Scotland in all reserved and devolved areas, including altering the competence of the Scottish Parliament and Scottish Government. This may be done either by explicitly amending the Scotland Act or, implicitly, by passing other legislation that is clearly inconsistent with the Scotland Act or a provision in another United Kingdom statute or an Act of the Scottish Parliament. However, under a constitutional convention (known as the Sewel convention), the United Kingdom Government and the United Kingdom Parliament have undertaken not to exercise legislative powers in devolved areas, or to change the legislative competence of the Scottish Parliament or the executive competence of Scottish Ministers, without the agreement of the Scottish Parliament. This mirrors the operation of the provisions in the Scotland Act, ensuring that both Westminster and Holyrood must agree on such changes to the competence before they may take effect.
Changes to devolved responsibilities and competence
1.12 The responsibilities of Scottish Ministers have been changed on numerous occasions under section 63 of the Scotland Act and by the use of the Sewel convention. These changes have come about from combinations of proposals by Scottish Ministers, proposals by the United Kingdom Government, and proposals by outside stakeholders. The reasons for transferring responsibility vary, but tend to recognise either Scottish Ministers' leading policy interest in an area, or the administrative coherence of Scottish Ministers having responsibility for an area that fits with existing devolved responsibility.
Examples include:
- powers to consent to construct, extend or operate electricity generating stations;
- functions relating to food safety and standards;
- regulations on the supply, purchase, possession or use of fireworks;
- functions under the Regulation of Investigatory Powers Act 2000;
- financial assistance in respect of shipping services carrying passengers between the Highlands and Islands and Northern Ireland;
- funding of rail services provided under franchise agreements; and
- functions in relation to fire authority pensions.
1.13 Alterations of the legislative competence of the Parliament have been relatively rare. One example is the extension of Scottish Ministers' and the Scottish Parliament's competence over railways. In 2004 an order was made under section 30(2) of the Scotland Act which allowed the Scottish Parliament to legislate to allocate rail transport functions to Scottish Ministers. Similarly, following agreement by Holyrood under the Sewel convention, the Railways Act 2005 (enacted at Westminster), gave Scottish Ministers responsibility for rail passenger franchises in Scotland and the provision, improvement or development of railway services in Scotland, including the financing of rail infrastructure.
Proposals for further change
1.14 There have been many proposals for other changes to the devolution settlement since its inception. These have ranged from devolving individual subject areas (such as airguns) to changing the underlying nature of the devolution settlement to a federal system, or to full independence. There have also been calls to establish processes to consider wide-ranging change, for example by convening a further constitutional convention.
1.15 At the Scottish Parliamentary election of 2007, each of the major parties made proposals concerning the devolution settlement. In addition to proposing a white paper on independence, the Scottish National Party made specific proposals to extend the devolution settlement by transferring responsibility for the civil service, for North Sea gas and oil, for broadcasting and for firearms. The Scottish Liberal Democrats proposed a new constitutional convention to examine the best way to devolve new responsibilities, including taxation, to Holyrood. They also proposed that competence over the electoral system, the Parliament itself, the civil service, energy, transport and marine policy should be devolved. In addition, the Scottish Liberal Democrats proposed a joint committee of Holyrood and Westminster to work in partnership on regulatory powers, misuse and control of drugs, control of firearms, asylum and immigration, planning of welfare services and aspects of employment law. The Scottish Labour Party emphasised the continued use of the mechanisms in the Scotland Act to make any necessary changes. The Scottish Conservatives declared themselves open to a debate about the powers of the Scottish Parliament to secure accountability for raising revenues, as well as for spending.
1.16 There have also been systematic examinations of further development of the devolution settlement. In 2006, the Steel Commission, under former Presiding Officer Lord Steel of Aikwood, made comprehensive recommendations, notably concerning fiscal policy. These proposals would move the United Kingdom's constitutional structure towards a federal system. The recommendations were put forward as part of a contribution to a proposed second constitutional convention.
1.17 In 2005, the Scottish National Party published Raising the Standard, a consultation paper on independence, as part of a contribution to a possible Independence Convention. That paper developed the arguments for an independent Scotland, and was followed by a paper laying out the results of responses to the paper, and a draft Bill for an independence referendum.