UK: Scottish Devolution From The Scotland Act 1998 To The Scotland Bill 2012 And Beyond - A Brief Summary

Last Updated: 4 May 2012
Article by Neil Amner and Robin Corbett

Biggart Baillie has many clients from outwith Scotland, who have interests in Scotland. Devolution and the movement towards possible independence are of significant interest to those clients. We provide advice to clients, too, on the workings of the Scottish Parliament, including promotion of private legislation. We offer the following summary of the current position, and are happy to advise on all related matters.

Scotland Act – Scottish Parliament

"There shall be a Scottish Parliament". This is the opening statement of the first section of the Scotland Act 1998. The Act transformed the constitutional position in Scotland within the UK by establishment of its own parliament.

The Act deals with:-

  • How the Parliament is elected;
  • The powers the Parliament has;
  • Provision for the appointment of a First Minister and Scottish Executive and the powers for the First Minister and Scottish Executive;
  • the relationship between the Scottish Parliament and the existing UK Parliament and UK Government;
  • The "tartan" tax ability to raise or lower basic rate of income tax by up to 3p in the pound.

The Parliament has legislative powers, but unlike the UK Parliament its powers are limited. Commonly its powers and limits are referred to as devolved and reserved. The extent of the devolved and reserved matters can be modified which the current Scotland Bill proposes to do.

Scottish Executive – Scottish Government

The legal name of the in power administration under the Scotland Act is the "Scottish Executive".

It was rebranded the Scottish Government in September 2007 by the SNP administration. This rebranding will be formalised by the Scotland Bill, if passed, which will rename the Scottish Executive the Scottish Government.

The official Gaelic title "Riaghaltas na h-Alba" has always meant "Government of Scotland".

Powers – devolved/reserved

There is no list of what is within the competence of the Scottish Parliament although there is a schedule of reserved matters in the 1998 Act. What is not reserved, is devolved. As you would expect, the division of powers and reserved matters is complex with exceptions to general rules. Even in an area such as criminal law where pre the Scotland Act there was a distinct and separate Scottish system, there are reserved matters, for example the Proceeds of Crime (Scotland) Act 1995 (as the confiscation of proceeds of drug trafficking a reserved matter) Matters of national security and terrorism are reserved.

Other examples of reserved matters are:-

  • Constitutional & currency matters;
  • Foreign Affairs;
  • Defence;
  • Energy including electricity, oil and gas, coal, nuclear energy, energy conservation;
  • Business and insolvency law.

Even where a matter is reserved, there is nothing to prevent the Scottish Parliament from discussing and debating the matter. For example, issues regarding oil and gas are of particular interest in Scotland and are extensively discussed and debated in the Scottish Parliament although reserved to the UK Parliament.

Funding – Whose Money?

Funding for the Scottish Parliament is allocated out of the UK Consolidated Fund into which all UK taxes are paid. The mechanism by which this is determined is known as the Barnett Formula. It adjusts the amounts of public expenditure allocated to Northern Ireland, Scotland and Wales automatically to reflect changes in spending levels allocated to public services in England, England and Wales or Great Britain, as appropriate. The formula is widely criticised and will change under the new Scotland Act.

Scottish Parliament legislation creating divergences in UK regions

Devolved powers have already led to divergences between Scotland and England, particularly under the influence of the SNP administration.

So far: -

  • Ban on smoking in public places introduced in Scotland first;
  • Free prescriptions;
  • Free personal care for the elderly;
  • Abolition of tuition fees (for domiciled Scots);
  • Scotland's greater commitments towards climate change by encouraging renewables schemes
  • Planning regime changes – the system is now materially different from England and Wales;
  • Resisting controversial NHS change – current NHS change proposals relate to England & Wales only;
  • "Bonfire of the quangos" in some instances only applies to England & Wales. For example, control of waterways remains in public control. British Waterways Scotland continues to exist renamed Scottish Canals;

How far can the Scottish Parliament go?

The Scotland Act specifically provides that there is no reduction in sovereignty of the UK Parliament. As sovereignty remains with the UK Parliament, it follows that Acts of the Scottish Parliament can be subject to challenge through judicial review.

The legislative competence of the Scottish Parliament has been challenged, most notably in AXA General Insurance Limited and others v The Lord Advocate and others.

This case related to pleural plaques which are evidence of exposure to asbestos and as such they are a marker that an individual has a greater risk of developing more serious conditions than someone who has not been exposed.

For many years the Courts accepted that anyone suffering from pleural plaques, with or without symptoms, was entitled to compensation. From the 1980s onwards, where pleural plaques arose from negligent exposure to asbestos, Courts throughout the UK made awards of damages and those awards were paid by the negligent party or their insurers.

In 2007, however, the House of Lords held in the case of Rothwell v Chemical and Insulating Company Ltd & ors that pleural plaques was not an injury for which damages could be claimed. Although the decision of the House of Lords was not binding in Scotland, it would have been highly persuasive and the Scottish Courts would have been likely to follow that decision.

After the House of Lords issued its decision, the Scottish Parliament passed legislation to ensure that Rothwell did not have effect north of the border and that legislation was passed the Scottish Parliament. The Damages (Asbestos-related Conditions) (Scotland) Act 2009 (the 2009 Act) came into force in June 2009 and provides that asbestos-related pleural plaques do constitute personal injury which is actionable under Scots law.

Later in 2009, a number of insurance companies raised a judicial review in the Court of Session to challenge the lawfulness of the 2009 Act. The challenge was unsuccessful and, having appealed in Scotland, the challenge was ultimately taken to the Supreme Court.

In the Supreme Court the insurance companies challenged the validity of the 2009 Act on two grounds:

  1. That it was incompatible under Article 1 of Protocol 1 of the European Convention on Human Rights and therefore outside the legislative competence of the Scottish Parliament under the Scotland Act 1998. The restrictions on legislative competence of the Scottish Parliament include prohibitions on legislating in breach of ECHR rights.
  2. That, under the common law, 2009 Act was open to judicial review as an unreasonable, irrational and arbitrary exercise of the legislative authority of the Scottish Parliament. The insurers contended that
the Scottish Parliament was in a quite different position to that of Westminster and that, as a creation of statute, it should be viewed as more akin to a local or regional authority whose actions were subject to judicial review on the ordinary grounds.


    The insurers argued that the Scottish Parliament had acted irrationally in imposing on them a substantial financial burden in order to compensate individuals for a condition which produced no symptoms and which did not impair their physical health.

The Supreme Court rejected the insurers' appeal.

In relation to the first ground, the Court held that the insurance companies were entitled to bring proceedings under the Human Rights Convention, but this particular challenge failed.

In relation to the second ground of challenge, the Court held that Acts of the Scottish Parliament are in principle subject to judicial review at common law, but not on the grounds of irrationality, unreasonableness or arbitrariness. This was not needed as there is already a statutory limit on the Scottish Parliament's legislative competence if a provision is incompatible with any of the Convention rights.

The result of the AXA decision is that there is now a different position in Scotland and in England & Wales as to whether those who have developed pleural plaques as a result of negligent exposure to asbestos are entitled to compensation. The latter are still bound by the Rothwell decision so pleural plaques is not an actionable personal injury south of the border. This leads to the possibility of "forum shopping" by claimants who will attempt to establish a basis for raising proceedings north of the border when it would otherwise be more appropriate to pursue an action in England or Wales.

The competence of the Scottish Parliament isn't clear in all aspects. There has been much debate as to whether the Scottish Government can hold an independence referendum without additional powers from the UK Parliament. This looks increasingly unlikely to result in court action as there are ongoing negotiations between the two parliaments on holding a referendum.

The Scotland Bill

The Scotland Bill proposes the "biggest transfer of fiscal power since the UK was created". It follows on, and largely implements the recommendations of the Calman Commission on Scottish Devolution.

On 18th April 2012 the Scottish Parliament passed the required motion supporting the passing of the Scotland Bill clearing the way for it to finish its passage through the UK Parliament.

The Scotland Bill completed its passage through Westminster on 26th April 2012. It is expected to get Royal Assent next week becoming The Scotland Act 2012.

The most significant provisions in the Bill give the Scottish Parliament greater responsibility for raising its own revenue. It stops short of the full fiscal autonomy that the SNP wants. The proposals are to reduce the rate of Income Tax in Scotland by 10% in each band (accompanied by a reduction in the Block grant for Scotland), allowing the Scottish Parliament to raise as much or as little tax by way of a Scottish income tax as it wishes. It would devolve Stamp Duty Land Tax and Landfill Tax, which would no longer apply in Scotland and could be replaced with Scottish taxes of a similar nature. It would create a power to request the creation of new taxes subject to approval at the UK level. The Scottish Government's borrowing powers would also be extended. This would result in the Scottish Parliament raising approximately 35% of its own budget from the current approximately 15% it raises.

There are also additional matters devolved and reserved. New devolved powers:-

  • Administration of Scottish Parliament elections;
  • Regulation of air weapons (this is arising out of a tragic case of a toddler killed in Glasgow);
  • Licensing the prescription of controlled drugs to addicts;
  • The national speed limit;
  • Drink driving limits. (Clearly this could result in a driver driving from England to Scotland and vice versa not being over the drink drive limit in one country but being over the limit in another.)

Controversially, as far as the SNP are concerned, it only provides for consultation for Scottish Ministers in appointing a BBC Trust Member for Scotland and a Scottish Crown Estate Commissioner. Especially with regards to the Crown Estate, the SNP wish to see this fully devolved to Scotland.

And the future for Scotland?

Both the Scottish and UK governments have ongoing consultations on the holding of a referendum on the question of Scottish independence. There is controversy over the number of questions, and timing. The SNP want to hold the referendum in August 2014, which coincides with the 700th anniversary of the battle of Bannockburn. The UK Government is seeking an earlier date. However, the question does seem to be when it will be held rather than if it will be held. There is already talk of further devolution of powers in order to head off full independence, so the Scotland Bill is not going to be an end to the question of devolution in powers to Scotland.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.