Public Law

The UK Government has published draft clauses which seek to translate the package of powers set out in the Smith Commission report (see here, here and here for a reminder) into provisions that will appear in a new Scotland Bill shortly after May’s general election. The Secretary of State for Scotland’s report is available here – scroll down to Annex A to find the draft clauses.

A picture of a magnifying glass zoming in over a map of Scotland

The UK Government has hailed the publication of the draft clauses three days before its self-imposed deadline of Burns Night. The Conservatives, Labour and the Liberal Democrats have all pledged to ensure that the new Scotland Bill becomes law early in the new Parliament, regardless of the general election result. By contrast, the SNP has vowed to push for more devolution if they hold the balance of power at Westminster.

However, the SNP has claimed that the powers set out in the draft clauses have been significantly watered down. One early controversy has arisen (reported here) following First Minister Nicola Sturgeon’s claim that the draft clauses give UK ministers a “veto” over any changes to Universal Credit, which includes changing the so-called “bedroom tax”.

Secretary of State for Scotland Alistair Carmichael promptly denied this, saying there would be consultation but that agreement would not be “unreasonably withheld”. Paragraph 4.2.8 of the UK Government’s report explains that Universal Credit was to remain reserved, per the Smith Commission report at paragraph 43. As it is to be delivered by the Department of Work and Pensions across Great Britain, there needs to be smooth administration and liaison between the UK and Scottish Governments to ensure the deliverability of any changes that the Scottish Government wishes to take forward.

Clauses 20 and 21 appear to be the cause of the controversy, stating – at 20(4) and 21(3) – that where the Scottish Ministers make regulations on certain “concurrent” welfare issues (including the “bedroom tax”), they must first consult the Secretary of State “about the practicability of implementing the regulations”. The Secretary of State must then agree when any changes made should come into effect, such agreement (pace Mr Carmichael) “not to be unreasonably withheld”.

If this is indeed the cause of the ‘veto’ concerns, we will venture to assist the nation. While the Secretary of State would of course have some discretion over the timing of any changes, exercising it in a way that would defeat the Scottish Ministers’ regulations altogether (e.g. demanding a delay of 10 years) – i.e. a de facto ‘veto’ – could be struck down in court as an improper use of that discretion. That would not even require the express statutory caveat that consent should not be unreasonably withheld, though there may nevertheless be specific scope for friction on that point in the future – as all commercial lawyers know, whether consent is withheld reasonably or unreasonably is a subject on which views can differ markedly! So it would appear we have quickly found at least two draft clauses holding out the fun (if you’re into that sort of thing) prospect of inter-governmental litigation.

We will be reviewing the detail of the draft clauses further – keeping an eye out for other potential areas of conflict! – and will post again once we’ve had a chance to digest them fully. For now, media coverage of the draft clauses can be found here, here and here.

Government, Regulation and Competition Law
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