The Scotland bill’s constitutional provisions have a few more surprises than its financial ones. Many were outlined in the Calman Commission’s report; there’s little new about the proposals to devolve control of air guns, drink-drive limits and speed limits, and local elections. The proposals to ‘undevolve’ regulation of charities and corporate windings-up were also part of the original report, and respond to real problems. For charities, the key problem is the fact that the legal status and regulation of charities and their taxation are handled by separate bodies, and that HM Revenue & Customs has shown a limited grasp of Scottish law. Whether restoring this area to UK control will solve the problem is, in fact, an open question – the problem isn’t so much who makes charities law but how well HMRC understand that Scottish law is of equal status to that of England and Wales, and seek to ensure that tax law takes account of both legal systems’ conceptions of ‘charity’.
This issue is worse when it comes to the provisions for corporate winding-up. Having this devolved means that the rules are administered by the same body that is responsible for the Scottish courts, and personal insolvency (bankruptcy). Restoring it to UK control means it will be administered by the Department for Business, Innovation and Skills, responsible for company law and the substantive rules of corporate insolvency, but with no expertise in Scottish law and procedure. This approach would only work if there were close and effective co-operation between BIS, the UK Government’s Scottish legal advisers in the Office of the Solicitor to the Advocate-General, and the legal departments of the Scottish Government who are responsible for the running of the Scottish courts. As BIS and its predecessors have generally shown a poor appreciation of the implications of devolution and a reluctance to engage with the Scottish Executive/Government, it’s hard to be optimistic about how this might work assuming it goes ahead.
A number of proposals weren’t in the Calman report, and these are the most interesting and important ones. I’ve already mentioned the odd provision relating to Antarctica. Some other provisions – enabling the Parliament to decide on the number of deputy presiding officers and how the Scottish Parliament Corporate Body is composed, (clauses 4 and 5) are sensible moves, which will command support in Scotland. (The point about the number of deputy presiding officers has been a Lib Dem bugbear since the first session of the Parliament, when Sir David Steel needed to take some time away for medical treatment.) If there’s a criticism here, it’s that the bill doesn’t go further and allow the Scottish Parliament to amend all ‘internal’ parts of the Scotland Act.
The real interest, though, lies in other proposals. The bill and Command paper propose that:
- the Secretary of State have power to refer particular provisions in bills to the UK Supreme Court before the bill receives Royal assent, allowing non-referred provisions to come into force without interruption;
- section 30 of the Scotland Act 1998 be amended, so that changes to the lists of reserved matters in Schedules 4 and 5 can be made for a limited period, not just permanently (as at present);
- anyone introducing a bill at Holyrood, not just a minister, would have to certify that the bill is within the Parliament’s legislative competence – that is, that it does not concern reserved matters, complies with EU law and the European Convention on Human Rights, and the UK’s international commitments.
The last of these is the least interesting and important. It brings the Scottish arrangements into line with those in Wales, where such requirements were enacted in 2006. The potential problem lies in the detailed, clause-by-clause assessment that the Command paper recommends be published to satisfy this requirement. That calls for a degree of expertise that many back-benchers will not have, and will add to the burden on those assisting members and committees. It also means a level of scrutiny which other legislation elsewhere does not get – including private members’ bills at Westminster (or even Government ones), though these are used as an analogy to support this provision. It would be quite something if the detailed advice on which ministers base their section 19 certificates were published!
The alteration of the rules about referring Scottish legislation to the UK Supreme Court would make only limited legal difference. No bill has yet been referred, and if the person introducing a bill wanted to combine a ‘dodgy’ clause with more mainstream ones it would be possible to introduce them as separate bills to avoid this problem. This change has to be motivated by a belief that the Parliament might in future seek to exceed its powers, and so a greater degree of control over what it might do is needed. It’s a question of improving the targeting of the weapon rather than the force the weapon has. But there is a dynamic that comes with altering how weapons can be targetted, which can itself be destabilising.
The amendment of section 30 comes out of the problems caused by the ‘Somerville’ case, and the need to find a way to assimilate time limits for actions alleging breaches of Convention rights under the Human Rights Act 1998 and the Scotland Act. (There was a time limit under the former but not the latter.) The complex solution found to this, after much negotiation, led to Whitehall preferring this sort of approach. But the problem in Somerville was a well-known lacuna in the Act, and had been aired several times before. How many more such issues are lurking in the background? I’ve not heard of any.
At first blush, both these proposals add ‘flexibility’ to the devolution settlement, and as such they look attractive – who’s against flexibility? Indeed, it’s the flexibility of the arrangements put in place by the 19988 Act that have enabled many issues to be involved without recourse to the courts. But both may raise more serious problems. The changes to section 30 will emphasise the limited and conditional nature of Scottish autonomy, and will make it easier for Whitehall to ‘administer’ devolution without considering carefully the constitutional implications of their actions. Being able to refer a single statutory provision to the UK Supreme Court, not a whole bill, will make that a more practicable thing to do. (Don’t forget that it will always be open to private parties to challenge the lawfulness of a particular provision if it affects them – this is about what governments do to each other.) Given that the problem is that Whitehall already thinks that it can reshape devolution arrangements whenever it suits it, making these more flexible will help the UK Government further avoid having to think about the constitutional nature of devolution and the division of powers it puts in place. That, on balance, is not an improvement. And it’s part of a more general approach to the management of Scotland’s constitutional relations with the UK level that I’ll discuss in a separate post.