Public Law

You can find my earlier post on the taxation elements of Lord Smith’s Report here.

Away from taxation, the Smith Commission’s Report proposes a number of significant new responsibilities for the Scottish Parliament, including:

  • Control over Scottish Parliament and local government elections (including the franchise, expected to be revised for the 2016 election to include 16 and 17 year olds), subject to any changes to the Parliament’s own franchise, electoral system or member numbers requiring approval by a two-thirds ‘supermajority’;
  • Management of, and proceeds from, the Crown Estate’s economic assets in Scotland; and
  • Power to create new benefits in devolved areas and make discretionary ‘top-up’ payments in any area of welfare, plus devolution of benefits that support the elderly, carers, the disabled and the ill. The new Universal Credit will remain reserved, though the Scottish Parliament will be able to vary the housing cost element and certain administrative aspects (such as the frequency of payments and paying landlords directly for housing costs).

A wide angled view of the Scottish Parliament
The Scotsman has reported today that the welfare proposals may have been rowed back late in the process.

Of particular interest to lawyers may be some of the more ‘niche’ (which is not to say unimportant!) reforms, including devolution of powers in areas such as:
A picture of a railway station

  • Equality: power to introduce gender quotas for Scottish public bodies, and legislate for “socio-economic rights in devolved areas”;
  • Tribunals: the administration of all tribunals (including Employment tribunals) except SIAC and POAC, though without devolving the underlying law;
  • Transport: power to allow public-sector operators to bid for Scottish Government rail franchises, and to change speed limits and road signs;
  • Energy: the design and implementation in Scotland of supplier obligations relating to energy efficiency and fuel poverty;
  • Oil & Gas: the licensing of onshore oil and gas extraction underlying Scotland;
  • Competition: power to require the CMA to carry out a Phase 2 investigation following on from a market study carried out at the Scottish Government’s request;
  • Consumer: powers over consumer advocacy and advice, and to “prevent the proliferation of Payday Loan shops”; and
  • Gambling: powerto “prevent the proliferation of Fixed-Odds Betting Terminals”.

The Report also identifies several “additional” policy matters which will not involve any further devolution, but on which the Scottish and UK Governments should work together, including:

  • Food & drink: seek to have a ‘made in Scotland’ brand recognised in EU law, and explore whether to allow Scotland to opt into UK levy raising arrangements (e.g. with respect to red meat and seafood) and, if so, to receive a share of UK monies levied;
  • Education: explore the possibility of allowing international graduates to remain in Scotland for a defined period of time;
  • Immigration: explore the possibility of: extending the temporary right to remain in Scotland for victims of human trafficking; putting different powers in place for asylum seekers to access accommodation and financial support and advice; allowing them to lodge an asylum claim from within Scotland; and allowing MSPs to submit concerns to the UK immigration authorities on devolved matters affecting their constituents;
  • Crime: ensure that fines etc. imposed by Scottish courts and tribunals, and recovered under Proceeds of Crime legislation, are retained by the Scottish Government;
  • Health & Safety: review the functions and operations of the HSE in Scotland and consider devolution of enforcement / similar ‘administrative devolution’ to that envisaged for tribunals (I paraphrase, as the original text is pretty impenetrable).

Lord Smith also used his foreword to make four recommendations outside the scope of his remit (again, as predicted by a certain public-law-related blog!). Those do not entail the devolution of any additional powers, but instead recommend that more be done under the existing legal framework in relation to:

  • Inter-governmental working;
  • Greater devolution within Scotland, with a decentralisation of powers from the Scottish Parliament to local communities;
  • Improving oversight of the Scottish Parliament, both within the Parliament and independently of it;
  • Raising public awareness of the Parliament’s powers, to address the “relatively weak understanding of the current devolution settlement”.

Taken together, the above proposals constitute a potentially significant package of reform to the scope of the Scottish Parliament’s powers. It will of course take time for these changes to be enacted, much less actually come into effect, and it may of course be a good deal longer before the Scottish Parliament actually takes the opportunity to legislate in any of these areas. There is nevertheless significant food for thought as to what potential reforms might come further down the line.

UPDATE: See here for thoughts on the constitutional issues raised by the Commission’s proposals, and an outline of what happens next.

Charles Livingstone

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone