BRIEFING PAPER Number CBP 8738, 16 December 2019 Scottish Devolution: By David Torrance Section 30 Orders Contents: 1. What is a section 30 Order? 2. Section 30 Order process 3. The 2014 referendum and section 30 4. The 2017 section 30 Order request 5. Section 30 Orders and the courts 6. Further Reading www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 Scottish Devolution: Section 30 Orders Contents Summary 3 1. What is a section 30 Order? 4 1.1 Examples of section 30 Orders 5 2. Section 30 Order process 7 2.1 Alternatives to section 30 Orders 7 2.2 Who can ask for a section 30 Order? 8 3. The 2014 referendum and section 30 9 3.1 The UK Government’s “offer” 9 3.2 Scottish Government response 10 3.3 Outcome of consultations 11 3.4 The Edinburgh Agreement 11 3.5 Responses to the section 30 Order proposal 12 Lords Constitution Committee 12 Referendum (Scotland) Bill Committee 12 Commons Scottish Affairs Committee 12 3.6 Parliamentary consideration 13 3.7 Scottish legislation 13 4. The 2017 section 30 Order request 15 4.1 The EU referendum 15 4.2 A further section 30 Order request 15 4.3 Subsequent events 17 4.4 Referendums (Scotland) Bill 17 4.5 Conditions for a section 30 Order on independence 18 4.6 Aftermath of 2019 general election 19 4.7 Prime Minister’s response 20 5. Section 30 Orders and the courts 21 Judicial review of section 30 Orders 21 Referendums (Scotland) Bill (2019) 22 6. Further Reading 23 Cover page image copyright: David Torrance 3 Commons Library Briefing, 16 December 2019 Summary A section 30 Order is a type of subordinate or secondary legislation which is made under the Scotland Act 1998. It can be used to increase or restrict – temporarily or permanently – the Scottish Parliament’s legislative authority. It does this by altering the list of “reserved powers” set out in Schedule 5, and/or the protections against modification set out in Schedule 4 of that Act. Such Orders have been used several times since 1999. The most high-profile example was the Scotland Act 1998 (Modification of Schedule 5) Order 2013, which temporarily devolved authority to legislate for a Scottish independence referendum. This took place on 18 September 2014. Section 30 Orders can be initiated either by the Scottish or UK Governments but require approval by the House of Commons, House of Lords and the Scottish Parliament before becoming law. There are equivalent provisions in the Government of Wales Act 2006 and Northern Ireland Act 1998. In March 2017, the Scottish Government requested a section 30 Order in order to legislate for a second independence referendum but the UK Government refused. First Minister Nicola Sturgeon renewed her request during 2019, as the Scottish Parliament considered what would become the Referendums (Scotland) Act 2020. 4 Scottish Devolution: Section 30 Orders 1. What is a section 30 Order? A section 30 Order is a UK Statutory Instrument (or SI),1 secondary legislation which is made under the Scotland Act 1998 (the “1998 Act”). As the Calman Commission explained in its 2009 report: Such an Order may extend the competence of the Scottish Parliament into a new area of responsibility currently reserved, or add an area to the list of reserved matters, thus taking it out of the Parliament’s control or preventing it coming within that control in the first place. The Order can modify the provisions of Schedule 4, which restrict the competence of the Scottish Parliament to legislate, or of Schedule 5, which list the reserved matters.2 Section 30 orders, therefore, are a process by which the powers of the Scottish Parliament can be altered without the need for primary legislation. Alterations can be temporary or permanent. Section 30(2) of the 1998 Act provides that “Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient”, subject to the agreement of both the UK and Scottish Parliaments. As the constitutional academic Alan Page observes, there “are no restrictions on the use that may be made of this power; the adjustments that may be made are simply those that are considered necessary or expedient”. He continues: But while the power is unlimited in the sense that it allows anything further to be devolved (or indeed reserved), it was clearly not designed to enable everything to be devolved; and there is no realistic prospect of it ever being so used (or used, for example, to devolve wholesale defence or foreign affairs). It the relationship between Scotland and the rest of the UK is to be radically altered it would need to be done on a different basis.3 A section 30 Order adjusting the legislative competence of the Scottish Parliament will, in the absence of any other provision, also change the powers of Scottish Ministers (something known as executive devolution). Section 63 of the 1998 Act also allows for changes to executive devolution in isolation. Sixteen executive devolution orders were made between 1999 and 2008, the most significant being that immediately after the creation of the Scottish Parliament, when many of the Secretary of State for Scotland’s responsibilities were transferred to the Scottish Ministers.4 Such powers are not unique to the Scotland Act 1998. Similar provisions exist in the Government of Wales Act 2006 (section 58 and section 109), and while there is no direct equivalent in the Northern Ireland Act 1 See Commons Library Briefing Paper CBP6509, Statutory Instruments, 15 December 2016. 2 Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, June 2009. 3 Alan Page, Constitutional Law of Scotland, Edinburgh: W Green, 2015, pp116-17. 4 Ibid., p136. 5 Commons Library Briefing, 16 December 2019 1998, an Order in Council can make Northern Irish “transferred” matters “reserved” matters, and vice versa.5 1.1 Examples of section 30 Orders Section 30 Orders have been used to alter the powers of the Scottish Parliament on several occasions since 1999. Most have made minor adjustments, while others have been more substantial. As of December 2019, 16 Orders have been made under section 30(2) of the 1998 Act. Examples include: • the Scotland Act 1998 (Modification of Schedule 5) Order 2001, which brought within the legislative competence of the Scottish Parliament certain matters relating to the insolvency of business associations which are social landlords; • the Scotland Act 1998 (Modifications of Schedule 5) Order 2004, which devolved legislative competence over the promotion and construction of railways wholly within Scotland; • the Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015, which enabled the Scottish Parliament to amend Schedule 4 for the purpose of reducing the minimum voting age in Scottish elections. Other section 30 Orders have been used to “clarify” the scope of reserved matters, making it clear, to quote Alan Page, “when the [Scottish] Parliament cannot legislate as well as when it can, and the terms in which it can legislate”.6 One such Order concerned freedom of information, while another updated legislative references.7 Orders have also been made in response to developments in the courts. The Scotland Act 1998 (Modification of Schedule 4) Order 2009 responded to the challenges presented by the Somerville case. A discrepancy had emerged between human rights proceedings under the Human Rights Act 1998 and those taken specifically against Scottish Ministers under the Scotland Act 1998.8 By modifying Schedule 4 of the latter Act, the Order enabled the Scottish Parliament to close this loophole. As the Calman Commission observed: Uniquely in this case […] a parallel agreement was reached by the UK and Scottish Government that this power was given to the Scottish Parliament on the understanding that the UK Parliament would then legislate subsequently in this area on a UK-wide basis, 5 See Commons Library Briefing Paper CBP8274, Brexit: Devolution and legislative consent, 29 March 2018, pp23-25. 6 Page, p118. 7 See the Scotland Act 1998 (Modifications of Schedules 4 and 5) Order 1999 and the Scotland Act 1998 (Modifications of Schedule 5) Order 2004 8 Under the Human Rights Act 1998 the bringing of human rights proceedings against a public authority was subject to a time limit, but if someone challenged the Scottish Ministers under the Scotland Act for the same alleged breach of Convention rights, no such time limit existed. 6 Scottish Devolution: Section 30 Orders repealing the legislation passed by the Scottish Parliament and ensuring a UK wide approach.9 In theory, a section 30 Order could be made to re-reserve a previously devolved matter. In practice, however, “re-reservation” of the Scottish Parliament’s powers has only happened via Acts of the UK Parliament or by virtue of the expiry of a temporary arrangement under a section 30 Order.10 9 Commission on Scottish Devolution, Serving Scotland Better. 10 Gov.uk, “Fact-Sheet: Scotland Act Orders”; Commission on Scottish Devolution, Serving Scotland Better. 7 Commons Library Briefing, 16 December 2019 2. Section 30 Order process The procedural criteria for a section 30 Order are laid out in Schedule 7, paragraph 2 of the Scotland Act 1998: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument— (a) has been laid before, and approved by resolution of, each House of Parliament, and (b) has been laid before, and approved by resolution of, the [Scottish] Parliament.