With the SNP set for a majority in May’s Holyrood elections, is Scotland on its way out? Marialuisa Taddia canvasses lawyers on the future of devolution and its implications for the law on both sides of the border
The low down
Whatever Scottish devolution achieved, it has not strengthened the union. The SNP is now dominant in an Edinburgh parliament not designed to allow for majorities. Scotland was already a separate legal jurisdiction with a proud history, and devolution gave Holyrood the power to diverge further from the UK’s other nations. That might have been regarded as a manageable headache for lawyers advising clients whose affairs and interests straddle the nations. But an unforeseen effect of devolution has been its capacity to shape debates in the rest of the UK. Scotland moved first on health issues like a public smoking ban. Now, in the teeth of a Westminster government that is distinctly equivocal on ‘human rights’, Scotland is embedding such rights at every level of law it can.
Since its 1999 creation, the Scottish parliament has accumulated more primary legislative powers than the assemblies of Wales and Northern Ireland. Among the policy areas where Holyrood has jurisdiction are justice, policing, social security, education, health and social services, environment, housing, and increasingly taxation – for example, it can set rates and thresholds of income tax in Scotland.
Electoral law for Scottish parliament and local government elections is also devolved. In December MSPs unanimously passed the Scottish General Elections (Coronavirus) Act 2021, giving the ‘presiding officer’ (the Scottish parliament speaker) a reserve power to postpone this year’s elections by up to six months, which means until November 2021.
Michael Clancy, director of law reform at the Law Society of Scotland (LSS), tells the Gazette: ‘That is quite an interesting way in which the Scottish government and all parties in the Scottish parliament have envisaged a “plan B” for dealing with an important election in the context of the pandemic.’ The act also provides for an all-postal ballot.
Human rights are essential to the devolution arrangements and the convention rights are embedded in the Scotland Act 1998
Michael Clancy, Law Society of Scotland
Parliament, led by an SNP government since 2007, has set other legislative precedents. According to Lynda Towers, director of public law at Morton Fraser: ‘It has pursued radical policies ahead of other parts of the UK, including a smoking ban, minimum alcohol pricing, free prescriptions, personal tax bands and free personal care for elderly people.’ Towers spent eight years as solicitor to the Scottish parliament.
Aileen McHarg, professor of public law and human rights at Durham Law School, points to policies relating to land reform and community rights to buy land; retention of Scottish Water as a publicly owned company; rejection of marketisation of the health service; and free prescriptions and university tuition.
In November, Scotland became the first country in the world to legislate for free period products for all, and MSPs are currently debating the UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which McHarg says ‘would be a significant extension of protection of children’s rights compared to other parts of the UK’.
The LSS has a statutory duty to work in the public interest, and one of its remits is ‘to influence the creation and development of high-quality law’. President Amanda Millar tells the Gazette that parliament has introduced ‘groundbreaking’ legislation on adult support and protection, incapacity and mental health that is now being reviewed and updated. ‘We have been instrumental in helping the government frame legislation around these important areas where people are arguably more vulnerable than others and to make sure that their legal rights are being protected.’
Clancy was a member of the working group set up in 2019 to advise on the incorporation of the UNCRC into Scots law. He says the bill ‘is a prelude to a much bigger project’ to incorporate a whole range of human rights conventions and instruments into Scottish legislation.
‘If the Scottish government is returned in the forthcoming elections then they are committed to bringing forward an overarching human rights act for Scotland which will then seek to embed in the law various conventions,’ says Clancy. These include the UN Convention on the Rights of Persons with Disabilities; on Elimination of All Forms of Discrimination against Women; and the Elimination of All Forms of Racial Discrimination.
A ‘national taskforce for human rights leadership’ began its work in October 2019 to propose a new statutory human rights framework for Scotland. The LSS is represented on the taskforce by Fiona Killen, a partner in Burness Paull’s public law and regulatory team, and a member of LSS’s constitutional law sub-committee.
Brexit, independence and the law
The Brexit referendum ‘fundamentally restructured the character of support for independence’, John Curtice, professor of politics at the University of Strathclyde, tells the Gazette. ‘There was no relationship between people’s attitudes towards the EU and whether they voted yes or no in 2014, and there was no relationship in 2016 between whether people voted remain or leave and whether or not they were yes or no voters, but since the [Brexit] referendum support for independence has got tied up with support for remain,’ he says.
Nicola McEwen, professor of territorial politics at the University of Edinburgh, says the changed status of the UK post-Brexit means that remaining in the union comes ‘with risks and uncertainties’.
But Brexit also raises new challenges for independence. ‘If an independent Scotland was to rejoin the EU, this would reopen European markets to Scottish businesses, and recreate free movement opportunities. But the border between England and Scotland would become an EU external border, with the need for some customs and regulatory checks on cross-border trade. That risks disrupting trade between Scotland and the rest of the UK,’ she says.
Hence an ‘independence referendum bill’, published before the May election. Lynda Towers, director of public law at Morton Fraser, says: ‘The size of the SNP majority, assuming that is what happens, may determine what the bill tries to do and that will depend on whether the PM sticks to his currently stated refusal to grant a section 30 order [under the Scotland Act 1998] to allow another referendum… There is already discussion in SNP circles as to whether a section 30 order is necessary or an advisory referendum without authorisation from Westminster can do the same job.’
Embedding human rights
‘Human rights are essential to the devolution arrangements and the convention rights are embedded in the Scotland Act 1998,’ explains Clancy. Section 29 states that any act of the Scottish parliament is ‘not law’ (that is, it would be immediately struck down by the courts) if incompatible with the European Convention on Human Rights (ECHR). This differs from acts of the UK parliament, whereby under the Human Rights Act 1998 (HRA) courts can only make a declaration of incompatibility.
Human rights is, predictably, an area of potential conflict between Holyrood and Westminster. The UK government launched an independent review into the HRA in December to focus on the ‘structural framework’ of the HRA, rather than the rights themselves. Charles Livingstone, partner at Scottish firm Brodies, says: ‘The Scottish parliament’s competence is limited by reference to acting compatibly with the ECHR rather than the [HRA], so even a repeal of the act need not necessarily affect that competence.’
Yet, given the Scottish government’s commitment to extending human rights protection, ‘any proposed reform at the UK level could be another source of constitutional tension’, McHarg says, referring to Brexit.
Nicola McEwen, professor of territorial politics at the University of Edinburgh, says the UK Internal Market (UKIM) Act 2020 is one of the main challenges to Scotland’s legislative competence.
‘For the first time, it means that legislation passed in the Scottish parliament, where it is subject to the market access principles of the act, will not apply to all businesses and business activity that takes place on Scottish soil,’ she says. ‘This could hinder the Scottish government’s ability to pursue some policy goals through regulation, including social justice or environmental sustainability.’
McHarg explains that the UKIM legislation ‘does not directly change devolved competences. The devolved legislatures are still able to legislate in devolved areas as before, as well as in areas currently dealt with at EU level such as environmental protection’. But, under the mutual recognition principle, producers or service providers based elsewhere in the UK will be able to ‘ignore’ devolved regulatory requirements provided they comply with relevant regulatory standards in their home markets. The second market access principle – non-discrimination – reinforces this approach.
‘Devolved governments will only be able to bind local producers and service providers to comply with their preferred standards, and will not be able to insist on compliance with those standards for all relevant economic activity within their territories,’ McHarg says. ‘Because of the greater size of the English market, this is likely to mean that regulatory standards adopted for England will, by default, apply throughout the UK.’
Before the introduction of the white paper for the bill in July, the UK and devolved governments ‘were in the process of agreeing new common frameworks to replace the homogenising effect of EU law’, according to McHarg. ‘These would determine where common rules are required and where, and to what extent, regulatory divergence might be acceptable’. Although this process is still ongoing, ‘agreed common frameworks are at risk of being undermined by the act’.
During the bill’s consideration in the Lords an amendment tabled by Lord Hope of Craighead was agreed. McHarg considers this ‘a minor concession. UK ministers have the power to exempt matters covered by common frameworks from the operation of the market access principles, but there is no guarantee that they will do so’, she says.
The Covid-19 crisis is the most important story in the history of devolution. It is the biggest public policy challenge to have faced the devolved institutions since 1999
Professor John Curtice, University of Strathclyde
Livingstone points out that the end of the Brexit transition period in December removed the requirement to only legislate compatibly with EU law. That covers key policy areas such as agriculture, fishing, the environment and public procurement, which were not reserved to Westminster in the way that areas such as foreign affairs, defence, business regulation and consumer protection generally were.
But that freedom of action has to an extent been curtailed by the UKIM and will be voluntarily constrained by common frameworks. Livingstone continues: ‘The common frameworks are intended to constrain the extent to which different legislatures can take different approaches in areas previously controlled by EU law.’
According to Towers, the UKIM legislation has ‘the potential to become very litigious in Scotland’. Adding to this prospect is the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 which came into force on 29 January. It allows Scots law to keep in step with EU legislation within the devolved areas of legislative competence.
Towers refers to provisions in the Continuity Act that allow this for the purpose of environmental protection, animal welfare, plant health, equality, non-discrimination and human rights, and social protection. ‘It is not hard to see the potential for legal dispute as to who has the power to regulate and enforce under which piece of legislation,’ she says.
Furthermore, it establishes a new environmental enforcement body (Environmental Standards Scotland) and applies the EU ‘guiding principles’ to ministers, the new body and public authorities in Scotland that deal with environmental matters.
The Welsh government is seeking judicial review of the UKIM legislation and asking the court to declare that it does not, in fact, limit devolved competences, and has named the Scottish government as an interested party.
Devolution and coronavirus
Covid-19 has raised the profile of UK devolution in the consciousness of the British public, particularly in Scotland.
John Curtice, professor of politics at the University of Strathclyde, tells the Gazette: ‘The Covid-19 crisis is the most important story in the history of devolution. It’s the biggest public policy challenge to have faced the devolved institutions since 1999 and it has also been important in that it has made it much clearer to people across the UK as a whole what devolution potentially means.’
According to Curtice: ‘One reason why test-and-trace is in such trouble south of the border is that they have insisted on creating a whole new structure, whereas north of the border they have basically been using the existing public health structure.’
Yet McHarg’s assessment is that ‘the Scottish government hasn’t done anything strikingly different, it’s been largely about differences of timing and emphasis, generally a more cautious approach to the pandemic rather than using any particularly distinct policy instruments’.
Towers adds: ‘If you look under the surface it is probably the case that while Scotland has taken its own route and timetables on occasion, these are not so different from England.’
The similarity of approach extends to Covid lawmaking. Towers says: ‘Legal concerns on late regulations being provided and the complexity and lack of debate of the legislation, as well as enforcement, are issues in Scotland as well as in England.’
The main sources of emergency powers in Scotland are: schedule 19 to the UK Coronavirus Act 2020, which allows ministers to issue wide-ranging public health regulations in Scotland (such as restrictions of movement and public gatherings, and face coverings); the two Scottish coronavirus acts, covering children and vulnerable adults, the running of the courts, support for social care and mental health; and the Public Health etc (Scotland) Act 2008, underpinning the international travel regulations.
Like England, Scotland has made ample use of statutory instruments and the ‘made affirmative’ urgency procedure to introduce them prior to a parliamentary vote. Between 1 March 2020 and 22 February 2021, a total of 134 Covid-related SSIs were laid in the Scottish parliament.
Scottish Covid statutes were introduced at speed in March 2020 to respond to the pandemic. Clancy says that notwithstanding concerns over scrutiny, respect for the rule of law, human rights and devolution, ‘it would not have been appropriate to hold up legislation at that point given the level of knowledge at that time.
‘As circumstances have changed it is important that where future law is concerned there will be adequate pre-legislative consultation, proper parliamentary scrutiny and effective post-legislative review.’ There is a process for reviewing Scotland’s devolved provisions under the UK coronavirus act, whereby every two months the Scottish government reports to Holyrood on the use of emergency powers.
Respect for the rule of law and human rights is the overarching principle underpinning the work of the Law Society of Scotland – and its reform programme published in February in the run-up to this year’s elections. Millar says: ‘We have challenged the government in relation to what has been going on and has come through with regard to coronavirus.’
Last November LSS called on the Scottish government to provide data on the legal basis of the transfers of more than 4,800 patients from hospital to care homes between March and May 2020. The society said it was ‘concerned by the absence of data showing that appropriate legal processes were followed to ensure no violation of the human rights of patients who could not or did not validly consent to the move’.
So has devolution to Edinburgh met expectations? ‘As the aim was basically to end the debate about Scotland becoming an independent country, devolution has not worked as intended,’ Curtice says. ‘So, from a unionist perspective, devolution has been a disaster.’
But McHarg contends: ‘If it was to improve democratic self-governance in Scotland, allowing decisions to be taken according to the wishes of Scottish electoral majorities, rather than UK majorities, then it has worked.’
Marialuisa Taddia is a freelance journalist