BRIEFING PAPER Number CBP-8441, 6 April 2020 "The settled will"? By David Torrance

Devolution in , 1998-2020

Contents: 1. Summary 2. Scotland: constitutional position 3. Historical background 4. 5. The Calman Commission 6. 7. referendum 8. The 9. 10. The and 11. and devolution in Scotland 12. Information and further reading 13. Political leaders in Scotland 14. Chronology of devolution in Scotland 15. Appendix

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Contents

1. Summary 4 2. Scotland: constitutional position 5 2.1 Reserved matters 5 2.2 UK Parliament and Government 6 Scottish Affairs Committee 6 Office of the Secretary of State for Scotland 7 2.3 The 7 2.4 The 7 Parliamentary governance 7 Elections 8 First meeting following an election 9 Plenary sessions 9 Committees 10 2.5 How legislation is passed 10 2.6 Intergovernmental relations 11 3. Historical background 12 3.1 Scotland’s place in the 12 3.2 The 12 3.3 Campaigns for “Home Rule” 13 3.4 1979 devolution referendum 13 3.5 1997 devolution referendum 14 4. Scotland Act 1998 15 4.1 Scotland 1997-98 15 4.2 First elections to the Scottish Parliament 16 4.3 Devolution – the first eight years 16 16 International aid 17 Scottish railways 17 4.4 Influence of the Scottish Parliament on Westminster 18 4.5 Criticisms of the devolution settlement 18 4.6 The “devolution paradox” 19 4.7 Fiscal responsibility? 19 Fiscal autonomy and fiscal federalism 20 Independence 20 4.8 Electoral system 21 4.9 2007 Holyrood elections 21 5. The Calman Commission 23 5.1 Responses to the Calman Commission 24 6. Scotland Act 2012 25 6.1 2011 Scottish Parliament elections 25 6.2 Agreement on the Bill 26 7. Scottish Independence referendum 27 7.1 ’s offer 27 7.2 The Agreement 28 7.3 Section 30 Order 28 7.4 Referendum preparations 28 7.5 Proposals for further devolution 29 3 Commons Library Briefing, 6 April 2020

Scottish Conservatives 29 29 Scottish Liberal Democrats 29 7.6 “The Vow” 30 7.7 Referendum result 30 8. The Smith Commission 31 8.1 Responses to the Smith Commission 31 9. Scotland Act 2016 32 9.1 Scotland Bill 2015-16 32 9.2 The “bedroom tax” 33 9.3 Delays in devolution of new powers 33 Welfare powers 33 Air Passenger Duty 33 British Transport Police 33 9.4 Is the Scottish Parliament permanent? 34 10. The Supreme Court and devolution 35 10.1 Scotland Act 1998 and the Judicial Committee 35 10.2 Supreme Court of the United Kingdom 35 10.3 How do devolution cases reach the Supreme Court? 35 First route 36 Second route 36 Third route 36 11. Brexit and devolution in Scotland 37 11.1 European Union referendum 37 11.2 2017 UK general election 37 11.3 European Union (Withdrawal) Bill 38 11.4 Continuity Bills 38 11.5 Changes to the EUW Bill 39 11.6 Common Frameworks 39 11.7 A second referendum? 40 12. Information and further reading 42 12.1 Online sources of information 42 12.2 Further reading 42 Scottish political history 42 The Scottish Parliament 42 Political parties in Scotland 42 Public policy and constitutional change 43 Elections and referendums in Scotland 43 13. Political leaders in Scotland 44 13.1 First Ministers of Scotland 44 13.2 Secretaries of State for Scotland 44 13.3 Presiding Officers of the Scottish Parliament 44 14. Chronology of devolution in Scotland 45 15. Appendix 47 Scottish Parliament elections, 1999-2016 47 Westminster , 1997-2019 47 4 "The settled will"? Devolution in Scotland, 1998-2020

1. Summary

In a speech to the Scottish in 1994, the then leader of the UK Labour Party, John Smith, referred to a Scottish Parliament as “the settled will of the ”, the creation of which would form the “cornerstone” of his party’s plan for “democratic renewal” in the United Kingdom.1 That Scottish Parliament became a reality in 1999, yet the devolution settlement in Scotland has often been contested, particularly when the (SNP) entered devolved government for the first time in 2007. Unlike in , where the devolution settlement quickly began to evolve,2 the first major changes to the powers of the Scottish Parliament took place in 2012. Taken together with the Act 1998,3 which restored devolved institutions in , and the Government of Wales Act 1998, these three devolution statutes transformed the UK’s territorial constitution. This briefing paper examines, first, the constitutional status quo in Scotland, then developments in its devolution settlement since the Scotland Act 1998 received on 19 November 1998. It then looks at, in turn, the amending Scotland Act 2012 and the subsequent Scotland Act 2016, which followed the 2014 independence referendum and again made significant changes to the Scottish Parliament’s fiscal and welfare powers. It concludes by examining the impact of Brexit upon devolution in Scotland.

1 “Challenge to Blair”, , 3 June 1994. Smith had first used the phrase at a meeting of the Scottish Constitutional Convention on 30 November 1990 (, The People Say Yes: The Making of Scotland’s Parliament, Argyll Publishing, 1997, pp142-43). 2 See Commons Library Briefing Paper CBP8318, “A process, not an event”: Devolution in Wales, 1998-2020, 6 April 2020. 3 See Commons Library Briefing Paper CBP8439, Devolution in Northern Ireland, 1998-2020, 4 February 2020. 5 Commons Library Briefing, 6 April 2020

2. Scotland: constitutional position

Summary The devolution settlement in Scotland operates under the “reserved powers” model, so that everything not specifically listed in statute as being the responsibility of the UK Parliament is, de facto, devolved to Scotland.

2.1 Reserved matters Under the Scotland Act 1998 (as amended in 2012 and 2016), reserved matters are subdivided into two categories, general reservations and specific reservations. The general reservations are: • aspects of the constitution, including the Crown, the Union, the UK Parliament, the existence of the (criminal) and the existence of the (civil) ; • the registration and funding of political parties; • international relations, including with territories outside the UK and the European Union, international development and the regulation of international trade; • the Home Civil Service; • defence of the realm; • treason. Specific reservations cover particular areas of social and economic policy reserved to Westminster. These are listed under 11 “heads”: • Head A – Financial and Economic Matters (fiscal – except devolved taxes – economic and monetary policy, currency, financial services, financial markets, money laundering); • Head B – Home Affairs (misuse of drugs, data protection and access to information, elections to the House of Commons, firearms – except air weapons – entertainment, immigration and nationality, scientific procedures on live animals, national security, official secrets and terrorism, betting, gaming and lotteries, emergency powers, extradition, lieutenancies and access to non- Scottish public bodies); • Head C – Trade and Industry (business associations, insolvency, competition, intellectual property, import and export control, sea fishing outside the Scottish zone, consumer protection, product standards, safety and liability, weights and measures, telecommunications, postal services, research councils, designation of assisted areas, industrial development and protection of trading and economic interests); • Head D – Energy (electricity, oil and gas, coal, nuclear energy and energy conservation); 6 "The settled will"? Devolution in Scotland, 1998-2020

• Head E – Transport (road transport, marine transport and air transport); • Head F – Social Security (non-devolved social security schemes, child support and pensions); • Head G – Regulation of the Professions (architects, health professions and auditors); • Head H – Employment (employment and industrial relations, health and safety, non-devolved job search and support); • Head J – Health and Medicines (xenotransplantation, embryology, surrogacy and genetics, medicines, medical supplies and poisons, welfare foods); • Head K – Media and Culture (broadcasting, public lending right, government indemnity scheme and property accepted in satisfaction of tax); • Head L – Miscellaneous (judicial remuneration, non-Scottish public body equal opportunities, control of weapons, Ordnance survey, time, outer space and Antarctica). Schedule 5 of the Scotland Act 1998 (as amended) gives a detailed and up-to-date breakdown of all general and specific reservations, as well as various exceptions. Often, the division between reserved and devolved powers is not clear in practice.4 For example, Head K (above) specifically reserves broadcasting to Westminster but does not mention press regulation. Only in 2013, during debates and proposals arising from the Leveson Inquiry, was it acknowledged that press regulation was, therefore, devolved to Holyrood

2.2 UK Parliament and Government Even under the “reserved powers” model, the UK Parliament – as is the case in Wales and Northern Ireland – remains sovereign (or legislatively supreme) in relation to UK law and retains the right to legislate, should it wish to do so, in all areas relating to Scotland. Under what is known as the Sewel Convention, however, the UK Parliament does “not normally” pass laws on devolved areas without first obtaining the consent of the Scottish Parliament. See Box 1 for further details of Legislative Consent Motions.5 Scottish Affairs Committee The Scottish Affairs Committee is a Select Committee of the House of Commons which examines the expenditure, administration and policy of the Office of the Secretary of State for Scotland, including its relations with the Scottish Parliament. It comprises 11 Members of Parliament who conduct inquiries and produce reports. There is also a Scottish

4 See Commons Library Briefing Paper CBP-8544, Reserved matters in the United Kingdom, 5 April 2019. 5 See also Commons Library Briefing Paper CBP8274, Brexit: Devolution and legislative consent, 29 March 2018. 7 Commons Library Briefing, 6 April 2020

Grand Committee, although this last met in November 2013 and infrequently after 1999.6 Office of the Secretary of State for Scotland Following the creation of the Scottish Parliament in 1999, the Scotland Office assumed the role of representing Scotland at the UK Government level on reserved matters, such as foreign policy and employment. In 2017, this was renamed the Office of the Secretary of State for Scotland. The Scottish Secretary, particularly after 2007, also acts as a conduit between the UK and Scottish Governments.

2.3 The European Union Through the UK’s membership of the European Union (EU), Scotland was subject to decisions about legislation and policy made at EU- level and applicable to all member states. In December 2015, for example, the European Court of Justice ruled that a proposal for minimum alcohol pricing was contrary to EU law on trade if other tax options existed, although it said the Court of Session in Edinburgh should make the final decision.7 On 23 June 2016, a majority voted to Leave the EU in a UK-wide referendum. Within Scotland, the result was 62% Remain and 38% Leave. The European Union (Withdrawal) Act 2018 amended the Scotland Act 1998 to reflect the UK’s withdrawal from the EU. As part of the UK, Scotland left the EU on 31 January 2020. See Section 11 for further details about the impact of Brexit on devolution in Scotland.

2.4 The Scottish Parliament Under the Scotland Act 1998, the single-chamber Scottish Parliament can pass primary and secondary legislation. The debating chamber is arranged in a hemicycle. There is no second, or “revising”, chamber. It currently operates a five-year sessional cycle, rather than the annual (or occasionally two-year) cycle used at Westminster. Even before the Scottish Parliament moved to its custom-built home opposite the Palace of Holyroodhouse in 2004, it was often referred to as “Holyrood”, which is widely used as shorthand for the devolved Parliament, just as “Westminster” is for the UK Parliament. Parliamentary governance The Scottish Parliament is governed by Standing Orders and a Corporate Body, which is responsible for providing the necessary property, services and staff. The Corporate Body is chaired by the Presiding Officer, who also convenes the Parliamentary Bureau, which allocates time and sets

6 UK Parliament website, Scottish Debates, Constitutional Arrangements, 12 November 2003. 7 The Court of Session ruled in favour of the Scottish Government in October 2016, although the Association then appealed to the Supreme Court. This also ruled in favour of the Scottish Government in November 2017, which allowed minimum pricing to take effect from April 2018. 8 "The settled will"? Devolution in Scotland, 1998-2020

the work agenda in the Chamber (unlike the House of Commons, where the Government sets the business). The Bureau consists of one representative from each political party – or groupings of smaller parties and individuals – with five or more seats. Elections Under the Scotland Act 1998, ordinary elections for the Scottish Parliament were held on the first Thursday in May every four years, before moving (like the National Assembly for Wales) to temporary five- year terms after the 2011 election.8 The date of the poll may be varied by up to one month either way by the Sovereign on the proposal of the Presiding Officer. A vote by two thirds of the parliament’s Members can dissolve the parliament, resulting in an extraordinary election which are in addition to ordinary elections unless held six months before the due date, in which case they supplant it. Elections are conducted under the proportional Additional Member System (AMS), producing 73 constituency and 56 regional list Members of the Scottish Parliament (MSPs). Until the reduction of Scottish MPs to 59 in 2005, constituency seats at Holyrood and Westminster were coterminous (except for Orkney and ), while the regional list MSPs are selected from eight regions based on the former constituencies (Central Scotland, , Highlands and Islands, Lothian, Mid Scotland and , North East Scotland, South Scotland and West Scotland). Each political party draws up a list of candidates to stand in each electoral , from which the list MSPs are elected. Taking account of the constituency vote, these 56 list seats are then allocated proportionately using a system based on the d’Hondt method (the National Assembly for Wales uses the same system). Those standing for places on the regional lists can also stand in constituency seats falling within that electoral region.9 As with all elections in the UK, citizens of Ireland and qualifying Commonwealth countries resident in Scotland are entitled to vote in Scottish Parliament elections, as are citizens of other EU member states (which is not the case at Westminster). Overseas voters on the Scottish electoral register are not entitled to vote. From the 2016 Holyrood election, the franchise was expanded to include 16- and 17-year olds (who had also been able to vote in the 2014 independence referendum). By-elections for constituency MSPs are held in the usual manner, while on the regional list a departing Member is replaced by the next person

8 The Fixed-term Act 2011 created a UK parliamentary term of five years and thus moved the date of the next Scottish Parliament election to 5 May 2016 to avoid a clash with a UK election then due in 2020. The Scottish Elections (Dates) Act 2016 then extended the Scottish Parliamentary term from four to five years, so that the next election could be held on 6 May 2021, with subsequent elections taking place every four years. 9 In the National Assembly for Wales, by contrast, dual candidacy has always been restricted and was banned outright at the 2007 and 2011 Assembly elections. 9 Commons Library Briefing, 6 April 2020

on his or her party list.10 If there is no one else on the list, as was the case when MSP Margo MacDonald died in April 2014, the seat is left vacant until the next Scottish Parliament election.11 There are no legal restrictions on MSPs also being members of the House of Commons, or European Parliament. Many MPs who were elected MSPs in 1999, for example, remained MPs until 2001, while , First Minister between 2007-14, remained an MP until 2010.12 Several MSPs, meanwhile, have left the Scottish Parliament after becoming MPs, for example and .13 First meeting following an election It has become a custom that the Queen opens each new session of the Scottish Parliament. Following an election, the previous term’s Presiding Officer presides over the swearing-in of MSPs, who are required to swear an oath of allegiance or make a solemn affirmation to the Sovereign. A new Presiding Officer is then elected in a secret ballot, followed by two deputies. Any MSP can stand for election as First Minister although, as at Westminster, this will normally be the leader of the largest single party.14 He or she then selects Ministers who (with the exception of two law officers) have to be MSPs.15 Another plenary session votes on the First Minister’s appointees. If the Scottish Parliament fails to elect a First Minister within 28 days of a vacancy arising, then Section 46 of the Scotland Act 1998 stipulates that another election must be held. Plenary sessions The Scottish Parliament typically sits on Tuesdays, Wednesdays and Thursdays from early January until late June, and from early September until mid-December, with a two-week recess in April and October, and a week in February. It generally conforms to “family-friendly” hours, i.e. there are no late-night sittings. Since 27 October 1999, the first item of business each week has been Time for Reflection, which, unlike prayers in the House of Commons, is ecumenical. MSPs vote (electronically) on all motions and amendments

10 When, for example, Nick Johnston resigned as a list MSP on 10 August 2001, he was replaced by , who was next on the Conservative list in the Mid Scotland and Fife region. 11 BBC News online, “Independent MSP Margo MacDonald dies”, 5 April 2014. 12 See Commons Library Briefing Paper SN04101, Members of Parliament holding dual mandates, 26 September 2017, and Scottish Parliament Fact sheet, MSPs with Dual Mandates, 5 December 2017. 13 Ben Wallace was a regional Conservative MSP for North East Scotland (1999-2003) before being elected an MP in 2005. In 2015, he was appointed a Minister at the before moving to the in July 2016. David Mundell was a regional MSP for the South of Scotland (1999-2005) before becoming an MP in 2005. He became Secretary of State for Scotland in 2015. 14 The election of a First Minster can be delayed if coalition negotiations are ongoing. 15 The and Solicitor General may attend and speak in plenary meetings of the Scottish Parliament but cannot vote. The Lord Advocate did so in a 2018 debate on the Scottish Government’s EU Continuity Bill. 10 "The settled will"? Devolution in Scotland, 1998-2020

moved during a plenary meeting at Decision Time, which usually takes place at 5pm. After Decision Time on Tuesdays and Wednesdays, and following First Ministers Questions on Thursdays, there are 45 minutes of Members’ Business. The Official Report, like Hansard at Westminster, is the published record of parliamentary proceedings. MSPs can debate and vote on reserved matters, but not legislate for them. MSPs can be ordered to leave plenary sessions by the Presiding Officer. This first happened to the Member Carolyn Leckie on 20 May 2004. Until moving to Holyrood in October 2004, the Scottish Parliament met at the ’s General Assembly chamber on the Mound in Edinburgh. To accommodate the Kirk’s annual General Assembly between 2000-04, in May 2000 the Scottish Parliament was temporarily relocated to the former Strathclyde Regional Council debating chamber in Glasgow, to the University of in May 2002, and to “The Hub” in Edinburgh in 2004.16 Committees The Scottish Parliament has a committee system, although this does not distinguish between standing and select committees, as in the UK Parliament. Seven “mandatory” committees are set out in the Scottish Parliament’s Standing Orders.17 The committees undertake scrutiny of both legislation and policy and can initiate their own inquiries in relevant subject areas. Like committees of the House of Commons, those in the Scottish Parliament can meet in other locations. UK Ministers often appear before Scottish Parliamentary committees but are not obliged to do so.

2.5 How legislation is passed The Scottish Parliament makes laws on what are known as devolved matters. Public Bills can be introduced by a backbench MSP, known as Members’ Bills,18 by a Cabinet Secretary or Minister (a Government Bill) or proposed by a Scottish Parliament committee (a Committee Bill). Private Bills can also be initiated by external promoters.19 Bills are then examined by the Scottish Parliament, mostly in committees, with one committee taking the lead. Before it can become law, a Bill has to pass three main stages: • Stage 1: Parliamentary committees consider the “general principles” of a Bill and consult members of the public and

16 MSPs returned to The Hub for a week in 2006 when a roof beam in the Holyrood chamber came loose and needed repaired. 17 These are: Standards, Procedures and Public Appointments, Finance, Public Audit, Europe and External Relations, Equalities, Public Petitions and Delegated Powers and Law Reform. 18 Each MSP can introduce two Members’ Bills during a parliamentary session. Lord Watson introduced the first in the Scottish Parliament, to ban fox hunting in Scotland. 19 Only one Hybrid Bill has so far been considered, to authorise the building of a new Forth crossing by the Scottish Government because it affected people and bodies near the proposed bridge. 11 Commons Library Briefing, 6 April 2020

external stakeholders. MSPs then debate and vote on the Bill in the Chamber; • Stage 2: A parliamentary committee considers the Bill in detail and decides on proposed changes, or amendments. • Stage 3: Parliament considers further amendments to the Bill and, finally, MSPs decide whether to pass or reject it.20 Before Stage 1, the Presiding Officer has to give their opinion on whether a Bill is within the Scottish Parliament’s competence, although this is not binding on the Scottish Government. Once a Bill is passed, there is a period of four weeks in which the for Scotland (a UK Government law officer) is required to certify that it does not contravene either the Scotland Act 1998 or the European Convention on Human Rights. Only then does the Presiding Officer write to the Queen asking for Royal Assent. If legislative competence is challenged in the courts, section 29(3) of the Scotland Act 1998 sets out the test for whether a legislative provision “relates to a reserved matter”. Reference must be made to the “purpose” of the provision, “having regard to its effects in all the circumstances” In the Supreme Court case of Imperial Tobacco v Lord Advocate, Lord Hope stated that this indicates “more than a loose or consequential connection” to a reserved matter must be established.21 Section 35 of the Scotland Act 1998 also empowers the Secretary of State for Scotland to prevent Royal Assent being given to a Bill in certain circumstances, although this power has never been used.

2.6 Intergovernmental relations Although it does not exist in statute, the Joint Ministerial Committee (JMC) is an important forum for discussions (and resolving disputes) between the UK Government and devolved administrations in Scotland, Wales and Northern Ireland. It was established under a Memorandum of Understanding initially agreed in 1999 and subsequently revised. Its main forum is known as JMC (Plenary), which is chaired by the Prime Minister and meets at least once a year. The JMC (European Negotiations) sub-committee was established following the June 2016 referendum.22 The Scottish Government also attends meetings of the British-Irish Council (BIC), established under the 1998 Belfast Agreement. Commons Library Briefing Paper CBP8371, Intergovernmental relations in the United Kingdom, has further details of both the JMC and BIC.

20 Scottish Parliament website, “How does the Scottish Parliament make laws?” 21 Imperial Tobacco v Lord Advocate [2012] UKHL 61, para 61 22 Commons Library Briefing Paper CBP-8371, Intergovernmental relations in the United Kingdom, 25 July 2018. 12 "The settled will"? Devolution in Scotland, 1998-2020

3. Historical background

Summary Since the parliamentary union of Scotland and in 1707, Scotland has exercised a degree of autonomy, initially administrative and, following a referendum in 1997, via a devolved based in Edinburgh.

3.1 Scotland’s place in the United Kingdom The original existed from the early 13th century and was the national legislature of the independent Scottish nation. England and Wales had become a single state via the Laws in Wales Acts 1535 and 1542, while the in 1603 drew the Scottish kingdom closer to its southern neighbour, England. The “incorporating” Anglo-Scottish Union of 1707 was not federal, although it did explicitly retain three aspects of Scottish institutional autonomy, the Church of Scotland, a Scottish education system and . By passing the Union with England Act 1707, the Parliament of Scotland agreed to dissolve itself and for the Kingdoms of Scotland and England to be “United into One Kingdom by the Name of Great Britain” with a single bicameral Parliament at Westminster. The Union with Ireland Act 1800, meanwhile, took the kingdoms of Great Britain and Ireland to “be united into one kingdom, by the name of the United and Ireland”. Following the formation of the Irish Free State in 1922, Scotland remained part of the renamed United Kingdom of Great Britain and Northern Ireland.

3.2 The Scottish Office For nearly 40 years following the Act of Union, a Secretary of State for Scotland existed as part of the new government of Great Britain. This position was abolished in 1746, and thereafter the had formal responsibility for Scottish affairs, although in practice much of this power was discharged by the Lord Advocate, Scotland’s senior law officer. In 1885, a bipartisan Liberal-Conservative movement for greater autonomy over Scottish affairs led to the Secretary for Scotland Act 1885, which created a dedicated Minister in charge of the Scottish Office. After 1892, the Scottish Secretary was always a member of the Cabinet, while in 1926 the position was raised to become a full Secretary of State. At first, the Scottish Secretary’s responsibilities primarily covered law and order and education, although the Minister was also required to supervise the various public boards that dealt with aspects of Scottish affairs (i.e. local government, agriculture and prisons). In 1919 a Scottish 13 Commons Library Briefing, 6 April 2020

Board of Health was created, presided over by the Secretary for Scotland. Over time, some of these boards became statutory departments of the Scottish Office, particularly following the Reorganisation of Offices (Scotland) Act 1928. In 1939, another reorganisation turned the Scottish Office into the more powerful department which became familiar after the Second World War. St Andrew’s House, the new administrative home of the Scottish Office, also opened its doors in Edinburgh, with most staff transferring from to the Scottish capital.23 This was known as “administrative devolution”, as distinct from the legislative variety implemented in 1999.24

3.3 Campaigns for “Home Rule” A Scottish Home Rule Association was formed a year after the Scottish Office opened in 1885, and for the next century it and several other organisations, movements and political parties proposed schemes ranging from “Dominion” status for Scotland within the British Empire, to “devolution” via a Scottish Assembly or Parliament sitting in Edinburgh. Until the early 1920s, such debates often moved in tandem with proposals for Irish Home Rule, envisaged as part of an holistic constitutional reform of the UK. Various “Home Rule” bills came before Parliament, while one, the Government of Scotland Bill, even passed its second reading in the House of Commons on 30 May 1913.25 The First World War delayed implementation, but the formation of the Scottish National Party (SNP) in 1934 and Scottish Covenant Association in the 1940s kept up the pressure for greater autonomy. The SNP elected its first MP in a 1945 by-election, while ’s victory in another by-election in 1967 precipitated several devolution proposals from the Conservative, Labour and Liberal parties. This led to a Royal Commission on the Constitution, whose 1973 report recommended a directly-elected Scottish Assembly to deal with most domestic Scottish affairs.

3.4 1979 devolution referendum The gave legislative effect to this proposal, subject to a post-legislative referendum which was held on 1 . The Act included an electoral threshold known as the “40 per cent rule”, which required 40 per cent of the total Scottish electorate (rather than of those voting) to endorse the proposals.

23 Commons Library Research Paper 97/92, Scotland and Devolution, 29 July 1997, pp5-6 24 See James Mitchell, Governing Scotland: The Invention of Administrative Devolution, London: Palgrave Macmillan, 2003. 25 Commons Library Standard Note SN04752, Bills on devolution in Scotland, has a list of all pre-1998 attempts to legislate on Scottish devolution. 14 "The settled will"? Devolution in Scotland, 1998-2020

Although 51.6% of those voting supported a Scottish Assembly, that threshold was not met and thus the Scotland Act 1978 was subsequently repealed following a vote in Parliament.

3.5 1997 devolution referendum After 1979, the Campaign for a Scottish Assembly continued to campaign for legislative devolution. Following the 1987 general election, at which the Conservatives lost all but 10 MPs in Scotland, pressure for devolution increased, with many supporters arguing that Westminster had “no mandate” to govern Scotland. In 1989 a Scottish Constitutional Convention was convened to agree a blueprint for what was by then generally referred to as a Scottish Parliament (rather than an Assembly). This emphasised the “sovereignty of the Scottish people”, although as the academic James Mitchell later observed, this Claim of Right for Scotland embodied “a political rather than justiciable claim”.26 In 1995, the Labour Party committed to a pre-legislative two-question referendum on establishing a Scottish Parliament with tax-varying powers. Two years later, the Labour Party won the 1997 UK general election. The Referendums (Scotland and Wales) Bill was introduced in the Commons on Thursday 15 May,27 the first Bill of the government, and received Royal Assent on 31 July 1997. The White Paper, Scotland’s Parliament (Cm 3658), which been published a week earlier, was debated the same day.28 The Referendum (Scotland and Wales) Act 1997 made legal provision for a non-binding referendum. Unlike the Scotland Act 1978, it did not include an electoral threshold. Ballot papers for the referendum, which was held on 11 September 1997, read as follows: I agree there should be a Scottish Parliament or I do not agree there should be a Scottish Parliament and I agree that a Scottish Parliament should have tax-varying powers or I do not agree that a Scottish Parliament should have tax-varying powers 74% of voters agreed there should be a Scottish Parliament, while 63% agreed it should have tax-varying powers. The turnout was 60.4%.29

26 Written evidence submitted by Professor James Mitchell (CC 21), 17 October 2012. While the Scottish Labour and Liberal parties took part in the SCC, the and SNP did not. 27 See Commons Library Research Paper 97/61, The Referendums (Scotland and Wales) Bill [Bill 1 of 1997-98], 20 May 1997. 28 HC Deb 31 July 1997 vol 299 cc456-52 29 Commons Library Research Paper 97/113, Results of Devolution Referendums (1979 & 1997), 10 November 1997, p6 & p9. 15 Commons Library Briefing, 6 April 2020

4. Scotland Act 1998

Following the Yes/Yes vote in the devolution referendum on 11 September 1997, the UK Government proceeded to legislate for a devolved Scottish Parliament with tax-varying powers.

4.1 Scotland Bill 1997-98 The Scotland Bill was published in December 1997 and received its second reading in the Commons on 12 and 13 January 1998.30 speaking at the This gave effect, with no substantial changes, to the proposals in the launch of the earlier White Paper. The Scottish Parliament was to be elected under the Scotland Bill: Additional Member System (AMS) and its Scottish Executive to be led by “There shall be a a First Minister. A statutory requirement that Scotland have a minimum Scottish Parliament. of 71 constituencies at Westminster was also removed by a provision in I like that!” the Bill, enabling a future reduction in representation.31 The (SVR) gave the parliament a limited power to vary the basic rate of income tax up or down by 3p. Otherwise, the Scottish Executive’s budget was to be funded via a “” from Westminster, although the was not explicitly mentioned on the face of the Bill. The Scottish Parliament would have legislative power over all matters not “reserved” to Westminster (those matters being listed in Schedule 5). It would also be prevented from legislating incompatibly with EU law and the European Convention on Human Rights, and could not legislate to modify “protected provisions” (listed in Schedule 4). Provision was also made for the transfer of additional responsibilities by Orders in Council: s30 allowed for “modifications of Schedule 4 or 5” considered “necessary or expedient”, while s63 enabled any reserved executive function “to be exercisable” by Scottish Ministers either “instead of” or “concurrently with” UK Ministers, or by a UK Minister “only with the agreement of, or after consultation with, the Scottish Ministers”.32 In contrast to the Claim of Right’s assertion of Scottish popular sovereignty, s28(7) of the Scotland Act 1998 included a conventional statement of Westminster sovereignty, that the devolved parliament’s legislative power “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.33 At the Bill’s committee stage, the Conservative MP Liam Fox sought to amend the Bill to remove abortion from the original list of reserved matters. This proposal was defeated, as was a similar proposed amendment in the House of Lords. The Lords also passed an

30 HC Deb 12 January 1998 vol 304 cc19-117 31 Commons Library Research Paper 98/1, The Scotland Bill: Devolution and Scotland's Parliament, 7 January 1998, p3. 32 See Commons Library Briefing Paper CBP-8738, Scottish Devolution: Section 30 Orders, 16 December 2019. 33 See David Torrance, “The history behind ’s call for a Claim of Right for Scotland”, Constitution Unit, 19 February 2020. 16 "The settled will"? Devolution in Scotland, 1998-2020

amendment which would have devolved control of elections to Edinburgh, but this was reversed in the Commons.34 The Scotland Act 1998 received Royal Assent on 19 November 1998.

4.2 First elections to the Scottish Parliament In the first elections to the Scottish Parliament on 6 May 1999, Scottish Labour gained 38.8% of the constituency vote and 34% on the regional list. This gave them a total of 56 seats, 9 short of an overall majority (the proportional electoral system was not expected to return a majority party). The Scottish National Party gained 35 seats, the Scottish Conservatives 18 and the Scottish Liberal Democrats 17. One independent MSP was also elected, as were single representatives from the Scottish Green and Scottish Socialist parties. Turnout in the Donald Dewar’s speech at the constituency vote was 58%, and 57% for the regional list ballot.35 opening of the Following negotiations, Scottish Labour and the Scottish Liberal Scottish Democrats formed the first Scottish Executive, with Donald Dewar as Parliament, 1 July First Minister and Jim Wallace as Deputy First Minister. 1999: “We are fallible. On 12 May 1999, the Scottish Parliament met for the first time. As the We will make oldest-elected MSP, the SNP’s Winnie Ewing was the first to take her mistakes. But we oath and preside, declaring that: “The Scottish Parliament adjourned on will never lose sight the 25th day of March 1707 is hereby reconvened.”36 The historic of what brought us Parliament of Scotland and the current product of statute, the Scottish here: the striving to Parliament are, however, legally and constitutionally distinct. do right by the people of Scotland; On 14 May 1999, the Labour-Liberal Democrat “Partnership for to respect their Scotland” agreement was signed, and powers formally transferred on 1 priorities; to better July 1999, when the Queen opened the first session of the new Scottish their lot; and to Parliament. Before that, MSPs gathered in Edinburgh’s Parliament Hall, contribute to the which had housed the Parliament of Scotland prior to 1707. commonweal.”

4.3 Devolution – the first eight years The first eight years of the Scottish Parliament, in which Labour and the Liberal Democrats governed for two consecutive four-year terms, were relatively stable in constitutional terms. Ministerial personnel were not. Donald Dewar, the first First Minister, died on 11 October 2000, while his successor, Henry McLeish, resigned on 8 November 2001. Jack McConnell was elected the third First Minister of Scotland on 22 November 2001. As in Wales and Northern Ireland, the devolution settlement in Scotland proved flexible, with early Scottish Executives testing its boundaries. Fresh Talent Initiative The Fresh Talent: Working in Scotland scheme, launched in February 2004, was intended to encourage people to settle in Scotland and thus

34 James Mitchell, The Scottish Question, Oxford: Oxford University Press, 2014, p252. 35 Commons Library Research Paper 99/50, Scottish Parliament Elections: 6 May 1999, 8 September 1999. 36 BBC News online, “Gathering in hall of political memories”, 1 July 1999. 17 Commons Library Briefing, 6 April 2020

counter falling population. Under the Scotland Act 1998, immigration was a reserved matter, but agreement was obtained from the Home Office so that overseas students at Scottish universities could remain in Scotland for two years and seek employment. The scheme began in summer 2005 but ended three years later when the UK Government introduced a new points-based immigration scheme. International aid In 2005, the Scottish Executive established a £9 million fund for . Although international development was a reserved responsibility under the Scotland Act 1998, Ministers worked around this by negotiating with the Foreign and Commonwealth Office and only giving money to Scottish charities rather than foreign governments.37 Scottish railways A more overt transfer of power came as a result of provisions in the Railways Act 2005, which allowed Scottish Ministers to determine railway policy instead of the UK , including management of the then ScotRail franchise, infrastructure needs and fare levels. Safety matters and the licensing of railway operators remained reserved. Jack McConnell called the move the “most significant devolution of new powers to Scottish ministers since 1999”.38 More broadly, the Scottish Labour Party, much like the Labour Party in Wales, made efforts to “differentiate” itself from the then Labour government at Westminster. As First Minister, Donald Dewar abolished up-front tuition fees in Scotland (a result of coalition negotiations with the Liberal Democrats), while his successor Henry McLeish introduced free personal care for the elderly, which led to disputes over finances.39 More symbolically, Henry McLeish and Tom McCabe, one of his Ministers, floated the idea of changing the Executive’s name to “Scottish Government” in early 2001, although this met with fierce opposition from Scottish Labour MPs at Westminster.40

Box 1: Legislative Consent Motions (LCMs) A Legislative Consent Motion (LCM), sometimes called a “Sewel motion”, is the means by which the Scottish Parliament indicates that it is content for the UK Parliament to pass legislation on a devolved matter. Between 1999-2007, LCMs were passed frequently by the Scottish Parliament, usually on relatively technical matters, although one concerned the introduction of civil partnerships. By April 2007, 79 LCMs had been passed by MSPs.41 The Scottish Parliament has explicitly withheld legislative consent on three occasions: on the Welfare Reform Bill (in part) in December 2011, on the EU (Withdrawal) Bill in May 2018 and on the EU (Withdrawal Agreement) Bill in January 2020. On the first occasion, the Government amended the

37 See Hamish Macdonell, Uncharted Territory: The Story of Scottish Devolution 1999- 2009, London: Politico’s, pp138-49. 38 BBC News online, “Executive in £325m rail takeover”, 18 January 2005. 39 See Commons Library Standard Note SN/PC/3000, Devolution in Scotland, 5 April 2004. 40 Mitchell, p258. 41 James Mitchell & Charlie Jeffrey (eds), The Scottish Parliament 1999-2009: The First Decade, Edinburgh: Luath Press/Hansard Society, 2009, p41. 18 "The settled will"? Devolution in Scotland, 1998-2020

legislation to remove the provisions to which the Scottish Parliament objected. On the second and third occasions, however, the UK Parliament passed the Bills without devolved consent.42

4.4 Influence of the Scottish Parliament on Westminster The Scottish Parliament proved influential, not only in Wales, where it was often viewed as the model for the evolution of its devolution process, but also at Westminster. The House of Commons Broadcasting Committee visited Edinburgh several times, recommending that the UK Parliament adopt more flexible rules when it came use of camera angles in the Commons Chamber and access for broadcasters to Central Lobby.43

4.5 Criticisms of the devolution settlement As with the devolution settlement in Wales, there were also criticisms of how the Scottish Parliament functioned: • Lack of a second chamber. Sir , the parliament’s first Presiding Officer, felt it needed “some ‘revising’ mechanism for legislation”, although “emphatically” not a “Scottish House of Lords” (Steel was also a peer), perhaps an “appointed committee of a couple of dozen people”.44 • Scottish Parliamentary committees. In 2009, the academics Chris Carman and Mark Shephard judged that any “hopes that the committees would be the vehicles of the 'new politics' have arguably been dashed”, instead being prone to “intensely partisan political squabbles”.45 • Political culture. Debates often proved every bit as adversarial as those in the House of Commons,46 while there were gradual moves towards Commons-style scrutiny of the First Minister (initially there was only a general question time). In 2000, 20 minutes was set aside each Thursday, something criticised by Sir David Steel as "something of a caricature of Prime Minister’s Question Time”.47 In 2003 First Minister’s Questions (FMQs) was decoupled from general question time, extended to 30 minutes in 2004, and to 45 minutes in 2016. • Impact on the rest of the UK. In 2009, the political scientist Charlie Jeffery observed that the devolution statutes of 1998 “were not considered as a package, but as discrete reforms, each rebalancing the relationship of one part of the UK with the UK

42 See Commons Library Briefing Paper CBP-8275, Legislative Consent and the European Union (Withdrawal) Bill (2017-19), 24 May 2018. 43 See Commons Broadcasting Committee, The Rules of Coverage, 18 June 2003, pp5- 9. 44 Mitchell & Jeffrey, pp18-19. See also Hector L. MacQueen, “The case for a second chamber”, in Bill Jamieson (ed), What Future for Scotland? Policy Options for Devolution, Edinburgh, Policy Institute, 2003, pp47-61. 45 Mitchell & Jeffrey, p27. 46 Mitchell, pp252-53, 274. 47 , “Untried Jack could guide parliament into maturity”, 22 November 2001. 19 Commons Library Briefing, 6 April 2020

centre”.48 This also highlighted the (see Box 3). • Role of law officers. Problems arose from the Lord Advocate’s role as both prosecutor and member of the Scottish Cabinet. The status of temporary sheriffs in Scotland was called into question under the European Convention on Human Rights because they owed their jobs to a political appointee.49 Colin Boyd, Lord Advocate after 2000, was also criticised for accepting a peerage in 2006.50 • Holyrood building project. There was sustained controversy regarding the cost and timescale of the new Scottish Parliament building at Holyrood in Edinburgh, a site chosen in January 1998 by the then Secretary of State for Scotland, Donald Dewar. Shortly before the 2003 election, First Minister Jack McConnell appointed Lord Fraser to chair The Holyrood Inquiry.51

4.6 The “devolution paradox” In 2006, academics identified what they called the “devolution paradox”, a desire by voters for greater autonomy in Scotland but also a reluctance to embrace policy divergence within the UK as a result.52 Another study observed that the Scottish Executive tended to get the credit for improvements to public services and Westminster the blame for problems, regardless of whether responsibility was devolved or reserved.53 This did not mean the Scottish Parliament escaped criticism from voters. As Professor James Mitchell argued in 2003, as well as “repatriating” Scottish politics, devolution had also “repatriated contempt for politics, politicians and parliament”.54

4.7 Fiscal responsibility? Some sought to combat the “devolution paradox” and related voter confusion about where responsibility lay with proposals for greater “fiscal autonomy”, whereby the Scottish Parliament would raise more

48 Mitchell & Jeffrey, p158. 49 Christine O’Neill, “The constitutional position of the Lord Advocate”, Journal of the Law Society of Scotland, 1 March 2000. 50 BBC News online, “Honour for prosecutor causes row”, 10 April 2006. After the 2007 election, Alex Salmond said the Lord Advocate would no longer routinely attend Cabinet meetings, an attempt to “de-politicise” the post, although over the next decade attendance became more and more frequent (Paul Hutcheon, “SNP Government in row over presence of Lord Advocate at Cabinet meetings”, Herald on Sunday, 5 August 2018). 51 See Commons Library Standard Note SN/PC3357, Building the Scottish Parliament, The Holyrood Project, 12 January 2005. 52 See, for example, John Curtice, “A Stronger or Weaker Union? Public Reactions to Asymmetric Devolution in the United Kingdom”, The Journal of Federalism 36:1, 2006, pp95-114. 53 Catherine Bromley et al (eds), Has Devolution Delivered?, Edinburgh: Edinburgh University Press, 2006. 54 James Mitchell, “Third Year, Third First Minister”, in R. Hazell (ed), The State of the Nations 2003, Exeter: Imprint Academic, pp136-37. 20 "The settled will"? Devolution in Scotland, 1998-2020

of its own revenue rather than simply allocating expenditure from the Westminster “block grant”. The ability to vary income tax by 3p had existed since 1999 (the Scottish Variable Rate) but was never used, although the SNP had proposed a “Penny for Scotland” at the 1999 elections, while in 2008 the Scottish Liberal Democrats advocated cutting the SVR by 2p.55 By then, the SVR had lapsed.56 Fiscal autonomy and fiscal federalism Murdo Fraser, who became a Scottish Conservative MSP in 2001, had advocated “full fiscal freedom” for the Scottish Parliament in a 1998 publication,57 although he later concluded that “full” fiscal autonomy was not the best model for a devolved Scotland.58 Ahead of the 2001 UK general election, Andrew Wilson, the SNP’s shadow finance minister, suggested giving the Scottish Parliament full control over all taxes raised in Scotland, something he said would save billions in lost revenue.59 Twelve prominent economists also wrote to the Scotsman backing full fiscal autonomy for the Scottish Parliament.60 In 2006, meanwhile, the Liberal Democrat Steel Commission published proposals for what it called “fiscal federalism”, under which the UK would continue to collect tax revenue but direct “devolved” funds to the Scottish Executive.61 In 2004, the Scottish Labour MSP and former Minister had also expressed support for fiscal federalism.62 Independence Although the SNP had supported a Yes vote at the 1997 devolution referendum, it continued to argue for full independence for Scotland (as well as fiscal autonomy in the interim). As Alex Salmond, SNP leader from 1990-2000 and again from 2004-14, argued, it was: worth remembering that in 1999 comparatively few additional powers were granted to the Parliament in Scotland that had not previously been devolved to the Secretary of State for Scotland. The shift from administrative to legislative devolution was, of course, momentous in itself. But it still left Scotland with fewer powers than the German Länder, most American states, parts of Spain such as the Basque Country or Catalonia, or, within these islands, the Isle of Man.63

55 Brian Taylor, “Tavish’s tactical tax tester”, Blether with Brian blog, 15 September 2008. 56 Scottish Government website, “Scottish Variable Rate”. There was a dispute between the Scottish Government and HMRC regarding payments for the necessary IT systems. 57 Murdo Fraser, Peter Smaill & Michael Fry, Full Fiscal Freedom for the Scottish Parliament, The Tuesday Club, 1998. 58 Murdo Fraser, “SNP’s Full Fiscal confusion”, Think Scotland website, 3 April 2015. 59 John Arlidge, “SNP dissidents lose out in row over tax”, The Observer, 4 March 2001. 60 The Scotsman, 18 May 2001. 61 See Scottish Liberal Democrats, Moving to federalism: a new settlement for Scotland, 6 March 2006. 62 See Ronald MacDonald & Paul Hallwood, “The Economic Case for Fiscal Federalism in Scotland”, 2004. 63 Alex Salmond, “Hugo Young lecture”, 25 January 2012. 21 Commons Library Briefing, 6 April 2020

4.8 Electoral system The Scottish Parliament’s electoral system attracted criticism due to the perception it created two “classes” of MSP, constituency and list, with occasional friction between the two. There were also concerns that the regional vote placed too much power in the hands of political parties (who selected the candidates) and too little in the hands of voters (who could not vote for individual candidates, only parties). Some proposed the use of “open” lists to get around this problem. Others called for the system to replace AMS.64 Originally, there was a plan to reduce the number of MSPs in line with a reduction of Scottish MPs in the House of Commons to 59, a change that took place ahead of the 2005 UK general election, ending “co- terminosity” between Scottish and UK constituency boundaries. The Scottish Parliament (Constituencies) Act 2004, however, fixed the number of MSPs at 129. In 2004, the UK Government also announced a review of the four voting systems to be used in Scotland as of 2007.65 The Commission on Boundary Differences and Voting Systems, chaired by Professor Sir John Arbuthnott, published its report, Putting Citizens First: Boundaries, Voting and Representation in Scotland, on 19 January 2006. It recommended that: • the Additional Member System should be retained, but with “open” lists to increase voter choice; • that constituency and regional boundaries for the Scottish Parliament be based on local authority areas rather than Westminster constituencies; • that candidates for election to the Scottish Parliament should not be prohibited from standing in both a constituency and on the regional list; • clearer and more positive roles be developed for constituency and regional MSPs; • the Single Transferable Vote system be used to elect Scottish Members of the European Parliament; • and that Scottish Parliament and local government elections should be held on different days.

4.9 2007 Holyrood elections The Scottish Executive disagreed that local and Scottish Parliament elections should be “de-coupled”, and the combined elections took place on 3 May 2007. A single ballot paper also replaced the two separate papers (one for the constituency vote, another for the regional list) used in previous Scottish

64 Duncan Hamilton, What Future for Scotland? Policy options for Devolution, The Policy Institute, 2003. 65 That is, first past the post at Westminster, the Additional Member System in the Scottish Parliament, the Single Transferable Vote in local government and a system for European Parliament elections. 22 "The settled will"? Devolution in Scotland, 1998-2020

Parliament elections. When the results were announced it was apparent there had been a substantial number of spoilt ballot papers. On 14 May 2007, the Electoral Commission appointed Ron Gould, an electoral administration expert, to lead a statutory review of the election.66 Meanwhile, the Scottish National Party had emerged as the largest single party by one seat.67 When negotiations with the Scottish Liberal Democrats failed to produce an agreement, SNP leader Alex Salmond decided to form a minority administration, for which there was a precedent in the National Assembly for Wales.68 Mr Salmond was elected First Minister on 16 May 2007 and three months later he published, alongside his deputy Nicola Sturgeon, a White Paper called Choosing Scotland’s Future, launching what they called a “National Conversation” on independence for Scotland. The new First Minister acknowledged that there were: a range of options which carry support – from greater devolution to fiscal autonomy to full independence […] as a democrat […] I believe in the sovereignty of the Scottish people and their right to choose the status of the country in which they live.69 One of the new Scottish Executive’s first acts was to rename itself the “Scottish Government” (as had been suggested in 2001) although this was not recognised in statute until 2012.70 For the first time, different political parties led the Scottish and UK Governments.

66 See Commons Library Briefing Paper SN03918, The Arbuthnott report and Scottish elections, 21 May 2007. 67 Commons Library Briefing Paper RP07-46, Scottish Parliament election: 3 May 2007, 31 May 2007. 68 Severin Carrell, “Salmond prepares for SNP minority government”, 8 May 2007. 69 Alex Salmond, “The Launch of a Public Debate on Scotland’s Constitutional Future”, speech at Napier University, 14 August 2007. 70 The SNP also committed to restructuring the Scottish Government and its civil service support, cutting the number of both ministers and departments. 23 Commons Library Briefing, 6 April 2020

5. The Calman Commission

The publication of Choosing Scotland’s Future united the three main opposition parties at Holyrood. On 13 August 2007, they issued a joint statement setting out their opposition to an independence referendum, while on 30 November (St Andrew’s Day), the new Scottish Labour leader, Wendy Alexander, advocated an independent review of the devolution settlement in Scotland. This idea was endorsed by the Scottish Parliament in a vote on 6 December and supported by the UK Government. Established under the chairmanship of Sir in March 2008, its terms of reference were to: review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, that would improve the financial accountability of the Scottish Parliament and that would continue to secure the position of Scotland within the United Kingdom. The Commission on Scottish Devolution, or “Calman Commission”, published The Future of Scottish Devolution Within the Union: A First Report in December 2008, and Serving Scotland Better: Scotland and the United Kingdom in the 21st Century: Final Report in June 2009. It made 63 specific recommendations, including that: • the Scottish Parliament should share responsibility for setting income tax rates with Westminster, while gaining control of Air Passenger Duty, Landfill Tax, the Aggregates Levy and Stamp Duty; • a consequential reduction in Scotland’s block grant should be calculated via the Barnett formula in the short term, with a UK- wide needs assessment replacing it in the long term; • the Scottish Government should have new borrowing powers to cover capital projects; • responsibility for the regulation of airguns, administration of elections, drink-driving limits and the national speed limit should all be devolved; • Scottish Ministers should have greater involvement in decisions and appointments relating to UK bodies such as the BBC, the and the Health and Safety Executive; • there should be better inter-parliamentary communications, an enhancement of the Joint Ministerial Committee structure and further development of the existing process for legislative consent.71

71 Commons Library Briefing Paper SN04744, The Commission on Scottish Devolution – “the Calman Commission”, 4 June 2010. 24 "The settled will"? Devolution in Scotland, 1998-2020

5.1 Responses to the Calman Commission In August 2009, the Scottish Government announced that a Referendum (Scotland) Bill would be included in its legislative programme for 2009-10, with the intention of holding a referendum on Scottish independence in November 2010.72 The Scottish Government’s response to the Calman Commission was published on 9 November 2009. It supported certain recommendations and rejected others, notably those regarding taxation. On 30 November, it published another White Paper, Your Scotland, Your Voice. This observed that devolution had never been intended as “a fixed arrangement”, but rather “a process which should respond to political, economic and social circumstances over time”. It said “full devolution”: would give Scotland more responsibility for domestic matters and […] extend the range of measures the Scottish Government and the Scottish Parliament could take to encourage greater sustainable economic growth. Nonetheless, there would be continued interaction with matters reserved to the United Kingdom.73 On 25 November 2009, the UK Government also published a White Paper, Scotland’s Future in the United Kingdom: building on ten years of Scottish devolution, which set out its legislative response to Calman.

Box 2: The West Lothian Question In a Commons debate on 14 November 1977, the Ulster Unionist MP Enoch Powell referred to “the West Lothian question”, the anomaly by which Members representing Scottish (or Welsh or Northern Irish) constituencies could vote on legislation affecting England, but neither they nor Members representing English seats could vote on subjects devolved to Scotland, Wales or Northern Ireland. , the then Labour MP for the West Lothian constituency, had identified the anomaly without giving it a name.74 Derry Irvine, of the UK in 1999, apparently said the best thing to do about the West Lothian Question was not to ask it,75 but others, particularly the Conservative Party, attempted to find a solution. In 2007, Sir , a former Secretary of State for Scotland, advocated an “East Lothian Answer” to the West Lothian Question via the creation of an English Grand Committee.76 In March 2013, the Commission on the consequences of devolution for the House of Commons, or the McKay Commission, recommended what became known as “English Votes for English Laws” (EVEL). This took effect from October 2015 when Commons standing orders were altered accordingly. Although Scottish MPs can speak in meetings of the Legislative Grand Committee (LGC) on English, or English and Welsh, matters, they cannot vote.77

72 The Referendum (Scotland) Bill did not pass due to opposition from a majority of MSPs. 73 Scottish Government, Your Scotland, Your Voice: A National Conversation, November 2009, p17. 74 Commons Library Briefing Paper SN02586, The West Lothian question, 18 January 2012. 75 Lord Norton, “The West Lothian Question: the answer is not the solution”, The Norton View blog, 24 September 2014. 76 Alan Cochrane, “Let’s hear it for the East Lothian Answer”, Daily Telegraph, 2 October 2007. 77 See Commons Library Briefing Paper CBP7339, English votes for English laws, 20 June 2017. 25 Commons Library Briefing, 6 April 2020

6. Scotland Act 2012

The Scotland Bill 2010-11 was introduced to the House of Commons on 30 November 2010 (St Andrew’s Day), with its second reading on 27 January 2011. The Secretary of State for Scotland, Michael Moore, said the Bill would “begin a new phase of devolution in Scotland”.78 On 7, 14 and 15 March, the Bill’s committee stage took place on the floor of the House, normal practice for legislation of a constitutional nature. Concurrently, the Scottish Parliament passed a Legislative Consent Motion (LCM) on 10 March 2011, agreeing that the UK Parliament should consider the Bill. The Bill was designed to implement many of the Calman Commission’s recommendations, chiefly new income tax powers and a commensurate reduction in the Scottish block grant, the devolution of some other taxes (and the ability to create new devolved taxes in future), and new powers over speed limits, regulation of air weapons and electoral administration. It also abolished the Scottish Variable Rate and gave the UK Supreme Court a role in some Scottish criminal appeals relating to compatibility with the European Convention on Human Rights (see Section 10.3). It therefore changed the boundary of devolved powers by amending some of the reserved matters in the Scotland Act 1998. Responsibility for Antarctica was transferred to Westminster, having been unintentionally devolved (via its omission from Schedule 5) in 1998. The Bill also formally changed the name of the Scottish Executive to “Scottish Government”, a term in use since 2007.79

6.1 2011 Scottish Parliament elections At the fourth elections to the Scottish Parliament on 5 May 2011, the SNP won an overall majority of seats (69 out of 129) with 44.7% of the vote, an unprecedented result given that AMS had been intended to prevent any single party gaining a majority.80 This outcome looked likely to delay the Scotland Bill when a new Scottish Parliament committee set up to look again at the Bill declined to recommend a second LCM without further changes. On 26 May, the First Minister called for further powers to be included in the Bill while expressing concerns about the proposed fiscal changes. On 13 June 2011, the Secretary of State for Scotland announced a package of changes to the Bill in response to issues raised in the UK and Scottish Parliaments, and by the Scottish Government, most of them technical. Its report stage and third reading took place on 21 June.81

78 HC Deb 27 January 2011 vol 522 c467 79 Commons Library Briefing Paper RP11-49, Scotland Bill: Committee Stage Report, 14 June 2011. 80 Commons Library Briefing Paper RP11-41, Scottish Parliament Elections: 2011, 24 May 2011. 81 Commons Library Briefing Paper SN06185, Scotland Bill: latest developments, 26 January 2012. 26 "The settled will"? Devolution in Scotland, 1998-2020

6.2 Agreement on the Bill On 21 March 2012, the UK and Scottish Governments announced they had reached agreement on changes to the Scotland Bill and supporting non-legislative measures. On 18 April 2012, the Scottish Parliament unanimously passed a second LCM.82 The Scotland Act 2012 received Royal Assent on 1 May 2012.

Box 3: The Barnett formula The majority of the Scottish Parliament’s budget is funded by grants from the UK Government, the “block grant” being the largest. Since the late 1970s, the non-statutory Barnett formula has determined annual changes to this block grant. Importantly, the formula does not determine the total amount of the block grant, only the yearly change. When a change is made to a UK Government department’s budget for England (normally in a Budget statement), the Barnett formula takes the change, considers how comparable the services provided by the department are to those provided by the Scottish Parliament and other devolved administrations, and then applies a population proportion, adding (or subtracting) money from the block grant. These are known as Barnett “consequentials”, which can be spent however the devolved administration wishes.83 The UK Government provides other grants outside the block grant, usually for less-predictable demand-driven spending. Changes in these grants are negotiated by the UK Government and devolved administrations. The Barnett formula is not used to determine their change (for example, “City Deals” in Scotland and additional financial support for Northern Ireland following DUP-Conservative negotiations after the 2017 general election).84 Spending in England is treated as a baseline, but the reverse does not apply, so if Northern Ireland, Scotland or Wales individually receives additional spending, other parts of the UK do not. There have been frequent calls for a review of the Barnett formula and the wider funding system for devolved administrations. Some point to what they see as unfair relative differences in public spending across the UK, while others highlight that the formula pays no attention to differing need. A House of Lords Select Committee on the Barnett Formula reported in 2009, as did the House of Commons Justice Select Committee with its publication Devolution: A Decade On. “The Barnett Formula is overdue for reform”, it concluded, “and lacks any basis in equity or logic.” Recent devolution of tax and spending powers to Scotland, Wales and Northern Ireland have left the Barnett formula largely unchanged, although respective block grants have been adjusted to accommodate the revenue derived from new powers. Such adjustments aim to ensure that neither the UK Government nor the devolved authorities are made worse off simply by the power being devolved. To that end, and following almost a year of negotiations, the Scottish and UK Governments agreed a fiscal framework regarding future funding following the further devolution of tax and welfare powers to the Scottish Parliament. There is an ongoing debate about whether the Scottish block grant has been cut in real terms. The Scottish Government says there has been a reduction in its spending power of 9.2% since 2010/11, although this is disputed by opposition MSPs and some independent analysis.85 See Commons Library Briefing Paper CBP7386, The Barnett formula, for more details of how it functions.

82 Commons Library Briefing Paper SN06302, Scotland Bill: amendments in the House of Lords, 27 April 2012. 83 See HM Treasury, Funding the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly: Statement of Funding Policy, October 2010. 84 See Commons Library Briefing Paper SN07158, City Deals, 31 October 2018. 85 Fraser of Allandar Institute blog, “Has the increased or decreased since 2010/11?”, 27 January 2017. 27 Commons Library Briefing, 6 April 2020

7. Scottish Independence referendum

Another consequence of the 2011 Scottish Parliament election was renewed discussion of a referendum on independence, which the SNP had indicated (during the election campaign) would be held in the second half of the 2011-16 session. But given the constitution was reserved under the Scotland Act 1998, there was significant uncertainty as to the legality of such a move. The Scottish Government said it was confident a consultative referendum would be within the Parliament’s competence; the UK Government said it would not be.86 For several years the SNP’s position had been that winning a majority of Scottish seats at Westminster, or in a devolved parliament, would constitute a mandate to begin independence negotiations. However, in 2000 the party adopted a pre-legislative referendum as its new policy, a change partly inspired by the devolution referendum of September 1997.87

7.1 David Cameron’s offer In a television interview on 8 January 2012, Prime Minister David Cameron said he would approve a referendum on Scotland’s constitutional future: We owe the Scottish people something that is fair, legal and decisive so in the coming days we will be setting out clearly what the legal situation is. Two days later, the Secretary of State for Scotland published a consultation paper making it clear “the Union of the Kingdoms of Scotland and England” was “an aspect of the constitution” as set out in Schedule 5 of the Scotland Act 1998 and was therefore reserved to Westminster. But Michael Moore also offered to temporarily transfer the necessary powers to the Scottish Parliament under Section 30 of the same Act.88 The Scottish Government said Westminster was trying to interfere in a process that ought to be decided by the Scottish Parliament.89 Following a meeting of the Scottish Cabinet, Alex Salmond announced a referendum would be held in the autumn of 2014.90 He then published his own consultation document on 25 January 2012, including the

86 See Alex Salmond, “Salmond: ‘Thatcheresque’ rivals play into my hands”, The Herald, 12 January 2012. 87 Mitchell, pp269-70. 88 Scotland Office, Scotland’s constitutional future, 10 January 2012. 89 “Cameron denies 'dictating' terms of Scottish referendum”, BBC News online, 9 January 2012. 90 “Salmond calls for independence referendum in 2014”, BBC News online, 10 January 2012. 28 "The settled will"? Devolution in Scotland, 1998-2020

proposed wording of the question: “Do you agree that Scotland should be an independent country?”91

7.2 The Edinburgh Agreement There followed several months of talks between the Scottish and UK Governments. On 15 October 2012, the Edinburgh Agreement was signed at St Andrew’s House in Edinburgh. This agreed the framework and principles of an independence referendum to be held two years later, including a draft Section 30 Order which: • allowed the Scottish Parliament to set the question and franchise for the ballot, in which it intended to allow 16- and 17-year-olds to vote; • meant the referendum rules would be covered by the Political Parties, Elections and Referendums Act 2000, with modification for Scottish circumstances; • granted the Electoral Commission a role in reviewing the proposed question and other aspects of administering the referendum, subject to approval by MSPs.92

7.3 Section 30 Order The Section 30 Order was laid before the UK Parliament on 22 October 2012. Article 3 modified Schedule 5 of the Scotland Act 1998, stating that paragraph 1 of that Schedule does not reserve “a referendum on the independence of Scotland from the rest of the United Kingdom” so long as certain conditions were met. These were that the poll must be held no later than 31 December 2014, that it must not be held on the same date as any other referendum and that there must be only one ballot paper giving voters a choice between only two responses (there had been speculation a third option on further devolution might be included). The Section 30 Order was debated in the Commons and Lords in January 2013 and approved by both. The Scottish Parliament also approved the Order on 5 December 2012.

7.4 Referendum preparations On 9 November 2012, the Scottish Government had confirmed its proposed question as “Do you agree that Scotland should be an independent country?”, to which voters would be asked to respond yes” or “no”. This was to be assessed by the Electoral Commission on grounds of fairness and clarity.93

91 Scottish Government, Your Scotland, Your Referendum: A Consultation Document, 25 January 2012. 92 Scottish Government & UK Government, Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland, 15 October 2012. 93 Commons Library Briefing Paper SN06478, Referendum on independence for Scotland, 15 January 2013. Previously, the Scottish Government had proposed establishing a special Scottish Referendum Commission. 29 Commons Library Briefing, 6 April 2020

Following the Electoral Commission’s recommendations, on 30 January 2013 the Scottish Government announced that the question would instead be: “Should Scotland be an independent country?” On 21 March, the First Minister confirmed that the date of the referendum would be 18 September 2014.94 A few months later, the Scottish Referendum (Franchise) Bill, which gave 16- and 17-year olds the right to vote the referendum, was passed by the Scottish Parliament. On 26 November 2013, the Scottish Government published its White Paper on independence, Scotland’s Future.

7.5 Proposals for further devolution As part of the referendum campaign, each party supporting a “No” vote – Scottish Labour, the Scottish Conservatives and Scottish Liberal Democrats – set out proposals for further extending the devolution settlement in Scotland (should independence be rejected by voters). At this point, many provisions of the Scotland Act 2012 were not due to come into effect until 2016. Scottish Conservatives On 26 March 2013, , Scottish Conservative leader, made a speech at the Royal Society of Edinburgh in which she committed her party to a review of every power held by the UK Government. The working group was formally entitled The Commission on the Future Governance of Scotland, but generally known as the Strathclyde Commission. It published its recommendations on 2 June 2014. Scottish Labour Scottish Labour’s Devolution Commission was established by its National Executive Committee following the election of as party leader in 2012. The Commission began to meet in November 2012, published an interim report in April 2013, and a final set of recommendations in March 2014. Scottish Liberal Democrats The Scottish Liberal Democrats created a Home Rule and Community Rule Commission under the chairmanship of Sir , which issued its first report – advocating a federal UK – in October 2012. In March 2014, it issued a second report, known as Campbell II, in which it sought to place Scottish reforms in the context of wider UK constitutional reform.95 On 16 June 2014, the leaders of the Scottish Conservative, Scottish Labour and Scottish Liberal Democrat parties issued a joint statement on further devolution, which was reiterated on 5 August. On 6 September, with just 12 days until the referendum, a YouGov opinion poll put the Yes campaign at 51% and No on 49%, the first

94 Commons Library Briefing Paper SN06604, Scottish referendum – the campaign rules, 13 May 2013. 95 Commons Library Briefing Paper SN06987, Scotland: Devolution proposals, 23 January 2015. 30 "The settled will"? Devolution in Scotland, 1998-2020

lead for independence registered by any polling company since the campaign began.

7.6 “The Vow” In response to that opinion poll, former UK Prime Minister made a speech at a Labour Party event on 8 September 2014, in which he set out a timetable for action on further devolution in the event of a No vote: • 19 September 2014: a timetable for further powers would be published as a motion in the UK Parliament, supported by all UK parties; • 31 October 2014: a command paper would be published setting out plans for more powers for the Scottish Parliament, followed by a consultation; • 30 November 2014: end of the consultation process and publication of a White Paper on the final agreed proposals; • 25 January 2015: publication of a new Scotland Bill; • 7 May 2015: second reading of the Scotland Bill to take place immediately after the 2015 UK general election.96 This timetable was endorsed by the leaders of the Scottish Labour, Conservative and Liberal Democrat parties in a press statement on 9 September, while a week later, the three UK party leaders issued a joint statement published in the newspaper under the headline, “The Vow”. This agreed that: The Scottish Parliament is permanent and extensive new powers for the Parliament will be delivered by the process and to the timetable signed and announced by our three parties, starting on 19 September […] And because of the continuation of the Barnett allocation for resources, and the powers of the Scottish Parliament to raise revenue, we can state categorically that the final say on how much is spent on the NHS will be a matter for the Scottish Parliament […] We will honour these principles and values not only before the referendum but after.97

7.7 Referendum result On 18 September 2014, Scotland voted 55.3% to 44.7% against independence on a turnout of 84.6%.98 In a statement the following day, the Prime Minister said there could “be no disputes, no re-runs – we have heard the settled will of the Scottish people […] a stronger Scottish Parliament backed by the strength and security of the United Kingdom”.99

96 Gordon Brown’s speech did not promise a “federal” UK, as was subsequently claimed. 97 “UK party leaders issue joint pledge to give Scottish parliament new powers”, , 16 September 2014. 98 Commons Library Briefing Paper RP14-50, Scottish Independence Referendum 2014, 30 September 2014. 99 UK Government press release, “Scottish Independence Referendum: statement by the Prime Minister”, 19 September 2014. 31 Commons Library Briefing, 6 April 2020

8. The Smith Commission

In his speech hours after the independence referendum result, the Prime Minister also announced the formation of a Commission chaired by Lord Smith of Kelvin to “convene cross-party talks” concerning “recommendations for further devolution of powers to the Scottish Parliament”. A Command Paper summarising the three Unionist parties’ commitments to further devolution was published on 13 October 2014.100 On 27 November 2014, the Smith Commission (which, unlike previous cross-party commissions, included the SNP) published its recommendations, including: • that the Scottish Parliament have complete power to set income tax rates and bands (this went beyond the partial powers in the as-yet-uncommenced Scotland Act 2012); • that the Scottish Parliament receive a proportion of the VAT raised in Scotland; • increased borrowing powers; • UK legislation to state that the Scottish Parliament and Scottish Government were permanent institutions; • devolving power over elections in Scotland, including extension of the devolved franchise to 16- and 17-year olds; • control over Disability Living Allowance, Personal Independence Payment, winter fuel payments and the housing elements of the Universal Credit, including the under-occupancy charge (popularly known as the “bedroom tax”); • new powers to make discretionary additional payments in any area of welfare without permission from the Department for Work and Pensions; • devolution of Air Passenger Duty, management of the Crown Estate’s assets in Scotland and licensing of oil and gas extraction; • new rules to ensure neither the Scottish nor UK governments lost or gained financially from the act of transferring a power.

8.1 Responses to the Smith Commission Nicola Sturgeon, Scotland’s new First Minister, said she welcomed the recommendations but did not believe they delivered “a modern form of home rule”: I want to have the power in our hands to create a better system to lift people out of poverty, to get our economy growing. That’s the kind of powerhouse parliament I want. Sadly, it’s not the one that’s going to be delivered.101

100 Lords Library notes LLN-2014-031, Debate on 29 October 2014: Devolution Following the Scotland Referendum, 23 October 2014. 101 Libby Brooks, “Nicola Sturgeon: Smith commission fails to deliver 'powerhouse parliament'”, The Guardian, 27 November 2014. 32 "The settled will"? Devolution in Scotland, 1998-2020

9. Scotland Act 2016

On 22 January 2015, the UK Government published another Command Paper, Scotland in the United Kingdom: An enduring settlement, which contained draft clauses for a new Scotland Bill to further amend the Scotland Act 1998 and give legislative affect to many of the Smith Commission’s recommendations.102 The Prime Minister said the proposals would make the Scottish Parliament one of the most powerful sub-state parliaments in the world, something challenged by the SNP and academics.103

9.1 Scotland Bill 2015-16 The Scotland Bill 2015-16 was introduced to the House of Commons on 28 May 2015 and received its second reading on 8 June 2015. As with the previous Scotland Bill, the Scottish Parliament again established a committee to examine the proposed legislation. The Bill also provided for devolution of income tax bands and rates on non-savings and non-dividend income, a share of VAT receipts in Scotland to be assigned to the Scottish Government’s budget, devolution of Air Passenger Duty and Aggregates Levy; powers over certain aspects of welfare and housing-related benefits; powers over speed limits and road signs, and rail franchising; control of the functions of the British Transport Police, Ofcom and the Crown Estate relating to Scotland; and control of the Scottish Parliament’s electoral system, subject to a two-thirds majority vote. Many of the Bill’s clauses were the same as, or similar to, the draft clauses published on 22 January 2015.104 The Smith Commission had recommended further consideration of devolving abortion law to the Scottish Parliament. Although this did not form part of the original Bill, amendments were tabled at the committee stage to bring these under devolved control. Initially, the Secretary of State for Scotland resisted, but on 14 October 2015 it was announced that the Government would table its own amendments to devolve this area of law.105 On 23 March 2016, the Scotland Act 2016 received Royal Assent. The final Act included provisions recognising the Scottish Parliament and Scottish Government as “a permanent part of the United Kingdom’s constitutional arrangements”, with a referendum required before either could be abolished (see Section 9.4 below).

102 Commons Library Briefing Paper SNP07090, Draft Scotland Clauses: summary, 28 January 2015. See also Commons Library Briefing Paper SN07095, Further devolution of powers to Scotland: Universal Credit housing element and payment arrangements, 6 February 2015, for more details of welfare devolution. 103 Nicola McEwan, “Can Holyrood be one of the most powerful devolved parliaments in the world?”, Centre on Constitutional Change, 8 March 2016. 104 Commons Library Briefing Paper CBP-7205, Scotland Bill 2015-16, 4 June 2015. 105 Commons Library Briefing Paper CBP-7233, Scotland Bill 2015-16: Committee stage report, 4 November 2015. 33 Commons Library Briefing, 6 April 2020

9.2 The “bedroom tax” Provisions under the UK-wide Welfare Reform Act 2012 included the “under-occupancy charge” (known by its critics as the “bedroom tax”). This policy reduced a housing benefit or Universal Credit (UC) benefit award where a claimant was deemed to be occupying a larger than necessary rental property. This policy came into effect on 1 April 2013. The Scottish Government was critical of this move and promised to mitigate the impact of the policy on Scottish social housing tenants. Discretionary Housing Payments (DHPs) – disbursed by local authorities on an application made by an existing housing benefit or UC claimant – were financially supported by the Scottish Government, but that support had been subject to a cap. From May 2014 the UK Government agreed to let the Scottish Government set its own cap on DHPs. The Scottish Government intended that the mechanism of using DHPs to mitigate the policy was to be temporary. The Scotland Act 2016 confers on Scottish Ministers powers in relation to the housing component of Universal Credit. Once fully implemented, this would allow the Scottish Government to reduce or eliminate the charge “at source” from its own resources for UC.

9.3 Delays in devolution of new powers Welfare powers The Scottish Parliament was due to assume executive control of 11 benefits in May 2020, but in March 2018 the Scottish Government asked about extending the transition until May 2021. Scottish Social Security Secretary Jeanne Freeman said it would be the “single biggest handover of power” since 1999 but added that IT systems had to be prepared. An Audit Scotland report said Ministers had “not clearly estimated” the cost of putting the new powers into practice.106 In February 2019, the transition was extended to May 2024. Air Passenger Duty In June 2018, Scottish Finance Secretary announced that the Air Departure Tax (ADT) – the devolved version of Air Passenger Duty – would not be ready in 2019-20, having already been postponed in 2018-19. In April 2019 the Scottish Government said it was deferring the new tax until after April 2020, while in May 2020 it dropped plans for a 50% reduction. British Transport Police Scottish Government plans to merge the British Transport Police (in Scotland) with were put on hold in August 2018. Introduction of the merger had been due to take place in April 2019, but Scottish Justice Secretary announced a review following warnings from Police Scotland about the practicalities implementing the move.107

106 Audit Scotland, Managing the implementation of the Scotland Acts, 28 March 2018. 107 BBC News online, “Police merger on hold after fresh warnings”, 27 August 2018. 34 "The settled will"? Devolution in Scotland, 1998-2020

9.4 Is the Scottish Parliament permanent? The Scotland Act 2016 sought to emphasise the Scottish Parliament’s “permanence”, which some argued was a quixotic goal in a country with no codified constitution and a strong tradition of Parliamentary sovereignty.108 As Lord Rodger commented in 2000, the Scottish Parliament was “created by statute and derives its powers from statute”.109 As such, technically the Scottish Parliament – like the Northern Ireland Parliament in 1972 – could be prorogued and/or abolished by Westminster, although such an act would likely have political consequences.110

Box 4: Government Expenditure and Revenue Scotland (GERS) Every year, the Scottish Government publishes Government Expenditure and Revenue Scotland (GERS), which according to the 2017-18 report, addresses three questions about Scotland’s finances: • What revenues were raised in Scotland? • How much did the country pay for the public services that were consumed? • To what extent did the revenues raised cover the costs of these public services? Balance sheets detailing expenditure and revenue in Scotland (and other parts of the UK) had been produced before, for example in 1932 and 1952,111 but it was in 1992 that the then Secretary of State for Scotland, Ian Lang, introduced GERS as a means of “undermining”, as observers and political opponents claimed, the case for devolution or independence by demonstrating that Scotland spent more than it raised via taxation.112 Since devolution in 1999, GERS has been produced by Scottish Government statisticians and designated as an Office of National Statistics product, meaning it is produced independently of Scottish Ministers and has been assessed by the UK Statistics Authority as being in line with the Code of Practice for Official Statistics.113 Its methodology has been changed and improved since the SNP entered office in 2007, now including, for example, a geographical share of revenues.114 The Scottish Government’s independence White Paper described GERS as “the authoritative publication on Scotland’s public finances”, and although based on the “current constitutional framework”, it provided: a useful indication of the relative strength of Scotland’s public finances as part of the UK and a starting point for discussions of Scotland’s fiscal position following independence.115 Ahead of the 2017 GERS publication, the SNP said it constituted “a snapshot of Scotland’s public finances [but] far from the full picture” and was “emphatically” not “a picture of the finances of an independent Scotland”.116

108 See Dr Eve Hepburn & Professor Sionaidh Douglas-Scott, “The ‘Permanence’ Issue: A Question of Symbolism or Power?”, written evidence to the Scottish Parliament Devolution (Further Powers) Committee, 16 March 2015. 109 Whaley v Watson [2000] SLT 475 110 See Peter Spiers, Scotland’s Challenge to Parliamentary Sovereignty: Can Westminster Abolish the Scottish Parliament Unilaterally?, , May 2015. 111 See Richard Parry, “Public Expenditure in Scotland” in David McCrone (ed), Scottish Government Yearbook 1983, Edinburgh: University of Edinburgh, 1983, pp98-99. 112 See Brian Taylor, “Playing politics with the ‘dismal science’”, BBC News online, 9 March 2016. 113 Scottish Government, Government Expenditure & Revenue Scotland 2017-18, August 2018, p7. 114 Scottish Government website, “Government Expenditure and Revenue – Methodology”. 115 Scottish Government, Scotland’s Future, November 2013, p67 & p596. 116 Ivan McKee, “GERS: a snapshot of Scotland’s finances – not the full picture”, SNP website, 22 August 2017. 35 Commons Library Briefing, 6 April 2020

10. The Supreme Court and devolution

Lady Hale, President of the Supreme Court of the United Kingdom (UKSC), has argued that the devolution of legislative power to Scotland, Wales and Northern Ireland has turned the UKSC “into a genuinely constitutional court”.117

10.1 Scotland Act 1998 and the Judicial Committee During the passage of the Scotland Act 1998, it was expected there would be legal challenges relating to the boundaries between devolved and reserved competences. Special machinery was established to deal with such cases, culminating in appeals to the Judicial Committee of the Privy Council (JCPC).118 In the event, there were only three challenges to an Act of the Scottish Parliament, and two of these involved one Act. This was the Protection of Wild Mammals (Scotland) Act 2002, a non-Executive Bill. The other legislation unsuccessfully challenged was the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 (later repealed). The post of Advocate General was created in 1999 to provide legal advice to the UK Government in relation to Scotland. The Advocate General can refer Scottish Bills on grounds of incompatibility, as can the Scottish Government’s two law officers, the Lord Advocate and Solicitor General.

10.2 Supreme Court of the United Kingdom The Constitutional Reform Act 2005 transferred the “devolution issues” jurisdiction from the JCPC to the Supreme Court. Since the establishment of the UKSC in 2009, there have been several significant judgments which interpret the 1998 devolution statutes (as amended).

10.3 How do devolution cases reach the Supreme Court? There are broadly three routes: • first, through a reference of a Bill that is before a devolved legislature by UK or Scottish Government law officers; • second, via a statutory reference or appeal of a “devolution issue”, as defined in each of the devolution statutes; • third, through the normal judicial process, with cases arriving at the Supreme Court on appeal from lower courts.

117 Lady Hale, “Devolution and the Supreme Court – 20 Years On”, UK Supreme Court, 14 June 2018. 118 See Commons Library Research Paper 97/92, Scotland and Devolution, 29 July 1997, pp28-29. 36 "The settled will"? Devolution in Scotland, 1998-2020

First route Under the first route, no Scottish Parliament Bill was referred in this way until the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill in 2018 (see Sections 11.4 & 11.5). Second route Regarding the second route, the majority of “devolution issues” cases reaching the UKSC concerned challenges to Acts of the Scottish Parliament for being incompatible with Article 6 of the European Convention of Human Rights (ECHR), which is required under the Scotland Act 1998. The ECHR connection is also the only means by which Scottish criminal cases can be appealed to the UKSC, otherwise they are the preserve of the Court of Session in Edinburgh. In June 2011, a judgement of this sort in the case of Nat Fraser, who contended that earlier appeal hearings in the Scottish courts had not complied with Article 6,119 provoked criticism from the then First Minister Alex Salmond. He argued that a Supreme Court Justice (Lord Hope) overruling several Scottish judges “boils down to the potential replacement of Scottish law with Lord Hope’s law”, and suggested that appeals be heard instead by the European Court of Human Rights in Strasbourg.120 An expert panel led by Lord McCluskey was set up by the Scottish Government to review what it called the “aggressive” intervention of the UKSC in Scots Law.121 His report recommended that appeals could only be made if the Scottish courts had granted a “certificate”, as in England and Wales. Third route On the third route, several important cases on devolution reached the UKSC and, prior to 2009, the Appellate Committee of the House of Lords, in this way, including the case of AXA v Lord Advocate [2011] UKSC 46.122 In July 2016, for example, several charities appealed to the UKSC regarding the Children and Young People (Scotland) Act 2014, which included a provision under which a “named person” would ensure the wellbeing of every child. While Justices ruled that the aim of the Act was “unquestionably legitimate and benign”, they also believed specific proposals contravened ECHR and were therefore “not within the legislative competence of the Scottish Parliament”.123 The Scottish Government agreed to amend the legislation.

119 Fraser v HM Advocate [2011] UKSC 24 120 Joshua Rozenburg, “Alex Salmond is gunning for the Supreme Court”, The Law Society Gazette, 9 June 2011. 121 Jonathan Rayner, “Scottish government to review role of Supreme Court”, The Law Society Gazette, 9 June 2011. 122 See Commons Library Briefing Paper CBP-7670, The Supreme Court on Devolution, 27 July 2016, for full details of Supreme Court cases involving the devolution settlement in Scotland. 123 Christian Institute v Lord Advocate [2016] UKSC 51 37 Commons Library Briefing, 6 April 2020

11. Brexit and devolution in Scotland

The fifth elections to the Scottish Parliament took place on 5 May 2016. The Scottish National Party won the largest number of seats (63) but lost the overall majority it had gained in 2011. The Scottish Conservatives came second with 31 seats.124 Significantly, the SNP’s manifesto had included a pledge that: the Scottish Parliament should have the right to hold another referendum if there is clear and sustained evidence that independence has become the preferred option of a majority of the Scottish people – or if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will.125

11.1 European Union referendum In a UK-wide referendum on 23 June 2016, electors voted to Leave the European Union (EU) by a margin of 51.9% to 48.1% on a 72.2% turnout. In Scotland, the vote was to Remain by 62% to 38% on a 67.2% turnout.126 The following day, David Cameron resigned as Prime Minister and Nicola Sturgeon, the First Minister, said a second referendum was, as a result, “highly likely”. On 20 December 2016, the Scottish Government published a White Paper, Scotland’s Place in Europe, advocating a “compromise” under which the whole UK or, failing that, Scotland as part of the UK, would leave the EU but remain part of the Single Market and Customs Union. This was rejected by the UK Government.127 On 13 March 2017, therefore, the First Minister formally requested a Section 30 Order so that the Scottish Parliament could pass another Referendum Bill. Three days later, Prime Minister said “now is not the time”. On 28 March, the Scottish Parliament voted 69- 59 for a second independent ballot. The next day, the UK Government triggered Article 50, under which the UK would begin the process of the leaving the EU.

11.2 2017 UK general election Following a “snap” UK general election on 8 June 2017, Mrs May remained Prime Minister but as head of a minority government. In Scotland, the SNP won 35 out of 59 seats, with the Conservatives on 13, Labour on seven and the Liberal Democrats on 4.128

124 Commons Library Briefing Paper CBP-7599, Scottish Parliament Elections: 2016, 20 May 2016. 125 Scottish National Party, “The SNP 2016 manifesto explained”, 20 April 2016. 126 See Commons Briefing papers CBP-7639, Analysis of the EU Referendum results 2016, 29 June 2016. 127 The Scottish Government updated this paper on 15 October 2018 with Scotland’s Place in Europe: Our Way Forward. 128 See Commons Library Briefing Paper CBP-7979, General Election 2017: full results and analysis, 22 September 2017. 38 "The settled will"? Devolution in Scotland, 1998-2020

Shortly thereafter, the First Minister announced plans to “pause” her call for a second referendum, promising to reveal her plans once the terms of the UK’s withdrawal from the EU became clear towards the end of 2018.

11.3 European Union (Withdrawal) Bill The European Union (Withdrawal) Bill (EUW Bill), which was introduced to the House of Commons on 13 July 2017, sought to repeal the Act 1972 and make other provisions in connection with the withdrawal of the UK from the EU. This followed a Supreme Court judgment on the Miller case, which compelled the UK Government to legislate rather than rely on so-called Henry VIII clauses in order to trigger the Article 50 process.129 Miller also clarified the role of legislative consent in the UK’s territorial constitution, with the Supreme Court noting its status as a political convention rather than binding law.130 The EUW Bill had significant implications for the devolution settlements in Scotland, Wales and Northern Ireland. The Scottish Parliament and National Assembly for Wales argued that under the “reserved powers” model of devolution, any powers previously exercised by the EU in devolved subject areas should be exercisable, in the first instance, by the devolved and pooled at a UK level only with devolved consent. UK Ministers argued this would ultimately increase the powers of the Scottish Parliament and other devolved legislatures. The First Ministers of Scotland and Wales, however, described the Bill as a “power grab” and indicated their intention to withhold legislative consent.131

11.4 Continuity Bills The Scottish and Welsh Governments also introduced “Continuity” Bills which sought, pre-emptively, to protect devolved institutions from changes the EUW Bill would make to the Scotland Act 1998 and Government of Wales Act 2006. These Continuity Bills completed their legislative stages on 21 March 2018. Royal Assent could not be granted, however, because the UK Government referred them to the Supreme Court under a devolution reference (see Section 10.3). In particular, the Scottish and Welsh Governments objected to the EUW Bill’s clause 11 (and Schedule 3), which would have imposed a broad obligation that devolved institutions could not “modify retained EU law”. They also argued that the absence of devolved consent requirements for clauses 7-9 meant UK Government ministers could

129 R v Secretary of State for Exiting the European Union [2017] UKSC 5 130 Commons Library Briefing Paper CBP-8274, Brexit: Devolution and legislative consent, 29 March 2018. 131 Commons Library Briefing Paper CBP-8154, The European Union (Withdrawal) Bill: Devolution, 24 November 2017. 39 Commons Library Briefing, 6 April 2020

unilaterally use Henry VIII clauses to modify the devolution statutes and/or change the law in devolved policy areas.132

11.5 Changes to the EUW Bill Following Government amendments at the Lords report stage of the EUW Bill, the presumption of clause 11 (now Section 12 of the 2018 Act) was effectively “reversed”. Instead of all retained EU law being protected from modification by devolved institutions by default, UK Ministers would have to specify in regulations (approved by the Commons and Lords) which areas it wanted to protect. The power to make those regulations was also to be time limited to 2 years after exit day on 29 March 2019, with no set of regulations allowed to have effect for longer than 5 years. On 15 May 2018, the Scottish Parliament withheld consent for the EUW Bill by 93 votes to 30. The National Assembly for Wales, by contrast, granted consent by 46 votes to 9. As a result, the Attorney General’s reference of the Welsh Continuity Bill to the Supreme Court as a “devolution issue” was withdrawn.133 The dispute over the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill was, however, considered by the Supreme Court on 25-26 July 2018. On 13 December 2018, the Supreme Court ruled that only section 17 of the bill would have been outwith the legal competence of the Scottish Parliament under the Scotland Act 1998 at the time of its passage. However, due to the passage and enactment of the European Union (Withdrawal) Act 2018 by the UK Parliament while the Scottish bill was under review, more sections of the bill were not within its legal competence.134

11.6 Common Frameworks In October 2017, the UK and Scottish Governments reached agreement on the broad principles that will guide the establishment of “common frameworks” covering policy areas that fall within the Scottish Parliament’s legislative competence. The UK Government published an initial Frameworks analysis on 9 March 2018. The next phase of the process is to identify precisely where such frameworks are required, what form they should take, and how far they should seek to constrain policy differentiation between different parts of the UK.135 In June 2018, however, the Scottish Government Minister Mike Russell said he “couldn’t conceive of circumstances” in which the Scottish Parliament would grant consent for further UK legislation related to

132 Commons Library Briefing Paper CBP-8275, Legislative Consent and the European Union (Withdrawal) Bill (2017-19), 24 May 2018. 133 Ibid. 134 See The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64 135 Akash Paun, Common UK Frameworks after Brexit, SPICe briefing, 2 February 2018. 40 "The settled will"? Devolution in Scotland, 1998-2020

Brexit, such as trade, agriculture and fisheries.136 And in October 2018, Holyrood’s Finance and Constitution Committee said it could not: recommend that the Scottish Parliament consents to the Trade Bill unless those parts of the bill which currently constrain the powers of Scottish ministers in devolved areas are removed.137 The EU Withdrawal Act 2018 requires the UK Government to publish quarterly reports on common framework development. The fifth of these was published in October 2019. Delivery timelines agreed in June 2019 aim to have the majority implemented by the end of 2020.138

11.7 A second referendum? In a statement to the Scottish Parliament on 24 April 2019, Nicola Sturgeon said the Scottish Government planned to “introduce legislation to set the rules for any referendum that is, now or in the future, within the competence of the Scottish Parliament”. The First Minister added that: We do not need a transfer of power such as a section 30 order to pass such a framework bill, though we would need it to put beyond doubt or challenge our ability to apply the bill to an independence referendum. As members are aware, the UK Government’s current position is that it will not agree to transfer power, but I believe that that position will prove to be unsustainable.139 Stage 3 consideration of the Bill took place on 19 December 2019 and the Referendums (Scotland) Act 2020 received Royal Assent on 29 January 2020. On 19 December 2019, following the UK general election, the Scottish Government published Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands. This argued for a permanent transfer of the power to hold a referendum on independence, either by a section 30 Order or via UK primary legislation.140 Nicola Sturgeon also wrote to the Prime Minister making the same request.141 replied on 14 January 2020: You and your predecessor [Alex Salmond] made a personal promise that the 2014 Independence Referendum was a “once in a generation” vote. The people of Scotland voted decisively on that promise to keep our United Kingdom together, a result which both the Scottish and UK Governments committed to respect in the Edinburgh Agreement. The UK Government will continue to uphold the democratic decision of the Scottish people and the promise that you made to

136 BBC News online, “Holyrood 'won't approve any Brexit bills'”, 22 June 2018. 137 Finance and Constitution Committee, Report on Trade LCM, 31 October 2018. 138 See Institute for Government, “Devolution: common frameworks and Brexit”, 16 March 2020. 139 Scottish Parliament Official Report, 24 April 2019 140 Scottish Government, Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands, 19 December 2019. See Annex B, pp28-33. 141 Tom Gordon, “Text of Nicola Sturgeon's Indyref2 letter revealed”, The Herald, 19 December 2019. 41 Commons Library Briefing, 6 April 2020

them. For that reason, I cannot agree to any request for a transfer of power that would lead to further independence referendums.142 On 29 January 2020, Members of the Scottish Parliament voted by 64 to 54 to agree that another independence referendum ought to take place.143

Box 5: Income Tax in Scotland The ability to vary the rate of income tax by 3p (in either direction) was authorized by the second question in the 1997 devolution referendum, and legislated for in the Scotland Act 1998, but never used. Scotland’s fiscal regime, therefore, remained the same as that in the rest of the UK (rUK) until 2017. Following the Scotland Act 2012, the Scottish Parliament was given the power to set a Scottish Rate of Income Tax (SRIT), 10p within each UK tax band, with corresponding reductions in the block grant. Initially, however, the Scottish Budget set the SRIT at 10%, which kept Scottish tax rates in line with UK rates. The Scotland Act 2016, meanwhile, gave the Scottish Parliament full control over income tax rates and bands, except the personal allowance. In 2017/18, the Scottish Government chose to freeze the higher rate threshold in Scotland, which meant those Scottish tax payers paid a little more than equivalent earners in rUK. In the Scottish budget for 2018/19, however, the Scottish Government proposed different rates and bands which would create more significant divergence from rUK. While the basic rate was kept at 20%, Finance Secretary Derek Mackay announced a new “starter” rate of 19%, an “intermediate” rate of 21%, while increasing the higher rate to 41% and the top rate to 46%. Following the October 2018 UK Budget, which increased the personal allowance across the UK and raised the higher rate threshold in rUK, analysis by the Scottish Parliament Information Centre suggested Scottish tax payers earning £50,000 would pay £1,343 more in tax than equivalent earners in rUK (the Scottish Government said it did not plan to raise the higher rate threshold in its 2019/20 budget). The Scottish Fiscal Commission produces independent forecasts of revenue from devolved taxes.

142 10 , “Letter from PM Boris Johnson to Scottish First Minister Nicola Sturgeon”, 14 January 2020. 143 See BBC News online, “Scottish independence: MSPs back new referendum in Holyrood vote”, 29 January 2020. 42 "The settled will"? Devolution in Scotland, 1998-2020

12. Information and further reading

12.1 Online sources of information Scottish Government: https://www.gov.scot/ Scottish Parliament: http://www.parliament.scot/ Scottish Parliament Information Centre (SPICE): http://www.parliament.scot/parliamentarybusiness/research.aspx Office of the Secretary of State for Scotland (formerly the Scotland Office): https://www.gov.uk/government/organisations/office-of-the- secretary-of-state-for-scotland Centre on Constitutional Change: http://centreonconstitutionalchange.ac.uk/ Reform Scotland: https://reformscotland.com/ David Hume Institute: https://www.davidhumeinstitute.com/ Fraser of Allander Institute: https://www.strath.ac.uk/business/economics/fraserofallanderinstitute/

12.2 Further reading Scottish political history James Mitchell, The Scottish Question, Oxford: Oxford University Press, 2014 Andrew Marr, The Battle for Scotland, London: Penguin, 2013 I.G.C. Hutchison, Scottish Politics in the Twentieth Century, Basingstoke: Palgrave Macmillan, 2001 The Scottish Parliament Jim Johnston & James Mitchell (eds), The Scottish Parliament at twenty, Edinburgh: Luath, 2019 Gerry Hassan (ed), The Story of the Scottish Parliament: The First Two Decades Explained, Edinburgh: Edinburgh University Press, 2019 Mark Lazarowicz & Jean McFadden, The Scottish Parliament: Law and Practice, Edinburgh: Edinburgh University Press, 2018 Paul Cairney, The Scottish Political System Since Devolution: From New Politics to the New Scottish Government, Exeter: Imprint Academic, 2011 Hamish Macdonell, Uncharted Territory: The Story of Scottish Devolution 1999-2009, London: Politico’s, 2009 Political parties in Scotland Andrew Liddle, Ruth Davidson and the Resurgence of the Scottish Tories, London: Biteback, 2018 43 Commons Library Briefing, 6 April 2020

Gerry Hassan and Simon Barrow (eds), A Nation Changed? The SNP and Scotland Ten Years On, Edinburgh: Luath, 2017 David Torrance, Nicola Sturgeon: A Political Life, Edinburgh: Birlinn, 2016 Peter Lynch, The History of the Scottish National Party, Cardiff: Welsh Academic Press, 2013 Gerry Hassan & Eric Shaw, The Strange Death of Labour Scotland, Edinburgh: Edinburgh University Press, 2012 Public policy and constitutional change Michael Keating, Debating Scotland: Issues of Independence and Union in the 2014 Referendum, Oxford: Oxford University Press, 2017 Michael Keating, A Wealthier, Fairer Scotland: The Political Economy of Constitutional Change, Edinburgh: Edinburgh University Press, 2017 Duncan McTavish (ed), Politics in Scotland, Abingdon: Routledge, 2016 Michael Keating, The Government of Scotland: Public Policy Making After Devolution, Edinburgh: Edinburgh University Press, 2010 Elections and referendums in Scotland Aileen McHarg et al (eds), The Scottish Independence Referendum: Constitutional and Political Implications, Oxford: Oxford University Press, 2016 Joe Pike, Project Fear: How an Unlikely Alliance Left a Kingdom United but a Country Divided, London: Biteback, 2015 Christopher Carman, Robert Johns & James Mitchell, More Scottish than British: The 2011 Scottish Parliament Election, London: Palgrave Macmillan, 2014 Murray Ritchie, Scotland Reclaimed: The Inside Story of Scotland’s First Democratic Parliamentary Elections, Edinburgh: Saltire Society, 2000 44 "The settled will"? Devolution in Scotland, 1998-2020

13. Political leaders in Scotland 13.1 First Ministers of Scotland • Donald Dewar MSP (17 May 1999 – 11 October 2000)144 • Henry McLeish MSP (26 October 2000 – 8 November 2001)145 • Jack McConnell MSP (22 November 2001 – 16 May 2007) • Alex Salmond MSP (16 May 2007 – 19 November 2014) • Nicola Sturgeon MSP (19 November 2014 – ) 13.2 Secretaries of State for Scotland • Donald Dewar MP (3 May 1997 – 17 May 1999) • John Reid MP (17 May 1999 – 25 January 2001) • MP (25 January 2001 – 13 June 2003) • MP (13 June 2003 – 5 May 2006) • MP (5 May 2006 – 27 June 2007) • MP (28 June 2007 – 3 October 2008) • MP (3 October 2008 – 11 May 2010) • MP (11 May 2010 – 29 May 2010) • Michael Moore MP (29 May 2010 – 7 October 2013) • MP (7 October 2013 – 8 May 2015) • David Mundell MP (11 May 2015 – 24 July 2019) • MP (24 July 2019 – ) 13.3 Presiding Officers of the Scottish Parliament • Sir David Steel MSP (12 May 1999 – 7 May 2003) • Sir George Reid MSP (7 May 2003 – 14 May 2007) • Sir Alex Fergusson MSP (14 May 2007 – 11 May 2011) • Tricia Marwick MSP (11 May 2011 – 12 May 2016) • MSP (12 May 2016 – )

144 Jim Wallace was Acting First Minister from 11-26 October 2000. 145 Jim Wallace was again Acting First Minister from 8-22 November 2001. 45 Commons Library Briefing, 6 April 2020

14. Chronology of devolution in Scotland

19 November 1998: The Scotland Act 1998 receives Royal Assent. 6 May 1999: The first elections are held for the Scottish Parliament. Labour and the Liberal Democrats form a coalition Scottish Executive led by Donald Dewar. 13 September 1999: Mental Health (Scotland) Act receives Royal Assent, the first Bill to be passed by the Scottish Parliament. 27 April 2000: Scottish Socialist MSP ’s Abolition of Poindings and Warrant Sales Bill passes, the first non-Executive piece of legislation to do so. 17 July 2000: Alex Salmond announces his resignation as SNP leader. He is succeeded on 23 September by . Salmond stands down as an MSP the following year but remains an MP. 11 October 2000: First Minister Donald Dewar dies. Henry McLeish is elected First Minister. 8 November 2001: Henry McLeish resigns as First Minister. Jack McConnell is elected his successor on 22 November. 1 May 2003: Following the second elections to the Scottish Parliament, Labour and the Liberal Democrats form another coalition Executive.146 9 October 2004: The Queen opens the Scottish Parliament’s new building at Holyrood. Its first meeting had taken place there on 7 September. 3 May 2007: In the third elections to the Scottish Parliament, the SNP emerge as the largest single party with 47 seats. Alex Salmond is elected First Minister on 16 May. 3 September 2007: The Scottish Executive is renamed the “Scottish Government”, although this is not recognised in statute until 2012. 25 March 2008: Launch of the cross-party Calman Commission on greater powers for the Scottish Parliament. 28 June 2008: Wendy Alexander resigns as Scottish Labour leader. She is succeeded by on 13 September. 15 June 2009: The Calman Commission reports, and the Scottish Parliament endorses its recommendations on 25 June. 5 May 2011: The SNP wins an overall majority in the Scottish Parliament with 69 seats. 15 October 2012: The Scottish and UK Governments sign the “Edinburgh Agreement” on the terms of an independence referendum.

146 Commons Library Research Paper 03/46, Scottish Parliament Elections: 1 May 2003, 14 May 2003. 46 "The settled will"? Devolution in Scotland, 1998-2020

26 November 2013: The Scottish Government publishes its White Paper on independence, Scotland’s Future. 19 September 2014: Alex Salmond announces his resignation as First Minister and SNP leader following the independence referendum. Nicola Sturgeon succeeds him in both posts two months later. 5 May 2016: In the fifth elections to the Scottish Parliament, the SNP remains the largest party but moves from a majority to a minority administration. 21 Feb 2017: Using new fiscal powers devolved under the Scotland Act 2016, the Scottish Government sets income tax rates and bands for the first time. 13 March 2017: First Minister Nicola Sturgeon calls for a second independence referendum. Three days later, Theresa May says “now is not the time”. 19 December 2019: Nicola Sturgeon repeats her call for a second independence referendum, requesting a permanent transfer of the relevant power. 47 Commons Library Briefing, 6 April 2020

15. Appendix Scottish Parliament elections, 1999-2016

SCOTTISH PARLIAMENT ELECTION RESULTS Share of vote (%) Seats won SNP CON LAB LD GRN Other SNP CON LAB LD GRN Other Total

Constituency seats 1999 28.7% 15.6% 38.8% 14.2% .. 2.7% 7 0 53 12 0 1 73 2003 23.8% 16.6% 34.6% 15.4% .. 9.6% 9 3 46 13 0 2 73 2007 32.9% 16.6% 32.1% 16.2% 0.1% 2.2% 21 4 37 11 0 0 73 2011 45.4% 13.9% 31.7% 7.9% .. 1.1% 53 3 15 2 0 0 73 2016 46.5% 22.0% 22.6% 7.8% 0.6% 0.5% 59 7 3 4 0 0 73 Regional seats 1999 27.3% 15.4% 33.6% 12.4% 3.6% 7.7% 28 18 3 5 1 1 56 2003 20.9% 15.5% 29.3% 11.8% 6.9% 15.7% 18 15 4 4 7 8 56 2007 31.0% 13.9% 29.2% 11.3% 4.0% 10.6% 26 13 9 5 2 1 56 2011 44.0% 12.4% 26.3% 5.2% 4.4% 7.8% 16 12 22 3 2 1 56 2016 41.7% 22.9% 19.1% 5.2% 6.6% 4.5% 4 24 21 1 6 0 56 Total 1999 ...... 35 18 56 17 1 2 129 2003 ...... 27 18 50 17 7 10 129 2007 ...... 47 17 46 16 2 1 129 2011 ...... 69 15 37 5 2 1 129 2016 ...... 63 31 24 5 6 0 129

Westminster elections in Scotland, 1997-2019

WESTMINSTER GENERAL ELECTION RESULTS IN SCOTLAND Share of vote (%) Seats won CON LAB LD SNP Other CON LAB LD SNP Other Total 1997 17.5% 45.6% 13.0% 22.1% 1.9% 0 56 10 6 0 72 2001 15.6% 43.3% 16.3% 20.1% 4.7% 1 55 10 5 1 72 2005 15.8% 38.9% 22.6% 17.7% 5.0% 1 40 11 6 1 59 2010 16.7% 42.0% 18.9% 19.9% 2.5% 1 41 11 6 0 59 2015 14.9% 24.3% 7.5% 50.0% 3.3% 1 1 1 56 0 59 2017 28.6% 27.1% 6.8% 36.9% 0.7% 13 7 4 35 0 59 2019 25.1% 18.6% 9.5% 45.0% 1.8% 6 1 4 48 0 59

The total of 48 SNP seats won in 2019 includes , the Member for Kirkcaldy and Cowdenbeath. He was suspended from the SNP prior to polling day but remained named as the SNP candidate on the ballot paper. On taking the oath, he sat in the Commons as an Independent. On 4 March 2020 the SNP said it would restore Hanvey’s membership of the party.

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