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The UK Parliament continues to legislate in reserved areas in Scotland. It remains sovereign and may also therefore legislate on devolved matters in Scotland. However in accordance with the so called Sewel Convention, the Government has adopted a principle whereby ‘the UK will not normally legislate in relation to devolved matters in Scotland without the agreement of the Scottish Parliament.’ The Scottish Parliament can agree the incorparation of legislative provisions affecting Scotland in devolved areas by what is called a ‘Sewel Motion’. This enables the Scottish Parliament to agree that Westminster should legislate for Scotland on devolved matters where, for example, it is considered sensible and appropriate to put in place a single UK wide regime or where the Parliament supports the proposed legislation but no Parliamentary time is available at Holyrood because of separate Scottish priorities.
Around half of the Bills in the 2001-02 and 2002-2003 Westminster legislative programmes applied to devolved areas in Scotland in key areas such as the confiscation of the proceeds of crime, pensions credit and communications. There are currently 72 members in UK Parliament representing constituencies in Scotland. The White Paper 'Scotland's Parliament' acknowledged the need to reduce Scotland's representation at Westminster, and the Scotland Act 1998 provided for this. Scottish constituencies at Westminster are likely to be reduced from 72 to around 59, so that Scottish MPs will be elected on the same demographic/numerical basis as the rest of the UK.
The Devolution Framework
The statutory framework for devolution set out in the Scotland Act 1998 is underpinned by the Memorandum of Understanding and four Overarching Concordats (on International Relations, the EU, Financial Assistance to Industry and Statistics between the UK Government and the three devolved administrations).There are also more detailed bilateral Concordats between the Scottish Executive and individual Government Departments. The Concordats are non-legally binding agreements whose purpose is to facilitate good relations between the administrations. They are underpinned by Devolution Guidance Notes (DGNs) published by the Department for Constitutional Affairs after consultation with the devolved administrations, and by the Statement and guidance on Devolution in Practice, which was re-issued by the Prime Minister and the Leaders of the devolved administrations in October 2002.
Machinery and Practice for Dispute Resolution
Part II of the Memorandum of Understanding sets out arrangements for dispute resolution. These provisions provide a basis for the Government to consider devolved legislation and the actions of devolved administrations and to seek to resolve questions of competence by informal dialogue with those administrations. The devolution legislation also contains provisions for settling questions of vires i.e. determining the legal powers of the Scottish Parliament and Scottish Executive Ministers by reference by a Law Officer to the Judicial Committee of the Privy Council (the members of whom include senior judges from Scotland as well as England and Wales). Although the Government is prepared to use these powers if necessary, it sees them very much as a matter of last resort. The Law Officers have not had to refer any cases to the Judicial Committee. 11 court cases where third parties had raised devolution issues have reached the Judicial Committee on appeal from the lower courts and in 7 of them, a Law Officer (the Advocate General for Scotland) intervened. These cases all changed the actions of members of the Scottish Executive on human rights grounds and one also challenged the lawfullness of legislation of the Scottish Parliament.