BRIEFING PAPER Number CBP-8441, 6 April 2020 "The settled will"? By David Torrance Devolution in Scotland, 1998-2020 Contents: 1. Summary 2. Scotland: constitutional position 3. Historical background 4. Scotland Act 1998 5. The Calman Commission 6. Scotland Act 2012 7. Scottish Independence referendum 8. The Smith Commission 9. Scotland Act 2016 10. The Supreme Court and devolution 11. Brexit and devolution in Scotland 12. Information and further reading 13. Political leaders in Scotland 14. Chronology of devolution in Scotland 15. Appendix www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 "The settled will"? Devolution in Scotland, 1998-2020 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 European Union 7 2.4 The Scottish Parliament 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 United Kingdom 12 3.2 The Scottish Office 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 Bill 1997-98 15 4.2 First elections to the Scottish Parliament 16 4.3 Devolution – the first eight years 16 Fresh Talent Initiative 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 David Cameron’s offer 27 7.2 The Edinburgh 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 Scottish Labour 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 elections in Scotland, 1997-2019 47 4 "The settled will"? Devolution in Scotland, 1998-2020 1. Summary In a speech to the Scottish Labour Party conference in 1994, the then leader of the UK Labour Party, John Smith, referred to a Scottish Parliament as “the settled will of the Scottish people”, 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 Scottish National Party (SNP) entered devolved government for the first time in 2007. Unlike in Wales, 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 Northern Ireland Act 1998,3 which restored devolved institutions in Belfast, 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 Royal Assent 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”, The Herald, 3 June 1994. Smith had first used the phrase at a meeting of the Scottish Constitutional Convention on 30 November 1990 (Kenyon Wright, 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) High Court of Justiciary and the existence of the (civil) Court of Session; • 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.