When is a power devolved a power retained?

Published: 22 January 2015

And so it has arrived: draft legislation on further powers for the Scottish Parliament, published before Burns Night, in accordance with the timetable set out in the wake of “The Vow”.  

There appear to be two clear faultlines emerging.  The first, which has the most resonance in Scotland, is over the issue of whether powers devolved over welfare are to be fully within the remit of the Scottish Government’s powers or whether the UK Government will retain some influence in this sphere.

First Minister Nicola Sturgeon made clear her view, arguing that the draft clauses do not provide “a general power to create new benefits in devolved areas as was promised [in Smith Commission] and gives UK Government effective veto over changes to universal credit, including bedroom tax.”  The SNP appear to be making this the theme of their response, with Pete Wishart MP calling the legislation a “veto-ridden document”.

Secretary of State for Scotland Alastair Carmichael, in response to this question from journalists, simply said that the First Minister was “wrong”, and that there was nothing in the draft legislation which would prevent the Scottish Government from pursuing their own priorities with regards to welfare benefits.

The relevant section of the draft legislation is Clause 20, sections 4 and 5:


(4) The Scottish Ministers may not exercise the function of making regulations to which this section applies unless –

(a)    they have consulted the Secretary of State about the practicability of implementing the regulations, and
(b)    the Secretary of State has given his or her agreement as to when any change made by the regulations is to start to have an effect, such an agreement not to be unreasonably withheld.

(5) The Secretary of State may not exercise the function of making regulations to which this section applies in or as regards Scotland unless he or she has consulted Scottish Ministers.

Here, the draft legislation iterates that the Secretary of State requires to be consulted about Scottish Government intentions with regards changes to welfare benefits, and that the Secretary of State must subsequently provide their “agreement” that the Scottish Government can proceed to make such changes.  David Mundell, Under-secretary of State for Scotland, argued that the UK Government “will need to understand what the Scottish Government intends to do with the new powers”.

In several respects, this clause is reminiscent of the Government of Wales Act 2006 and the process through which further powers could be delivered to the National Assembly for Wales through a complex system of Legislative Competence Orders.  In this system, an LCO committee was formed with members of the House of Commons and House of Lords to consider whether the power should be devolved, before being presented to the Secretary of State for Wales for agreement or veto (and subsequently voted upon, both in the Commons and the Lords).  

Amid delays (based, in part, upon political point-scoring) the system lasted only 5 years before the Welsh Assembly Government moved forward with a referendum to get rid of the LCO system and devolve further powers in one go.  Evidence, perhaps, that a system which requires the agreement of both devolved and central governments on policy changes might prove detrimental to effective governance.

The second faultline is, rather predictably, the wider constitutional ramifications of further devolution to Scotland.  During the Under-secretary of State for Scotland’s statement in the House of Commons, Conservative MPs lined up to point out that now Scotland had been dealt with, England should be next.  

No doubt given further impetus by Nicola Sturgeon’s announcement of a change in SNP policy which would see their MPs vote on English health matters when outcomes impacted upon the NHS in Scotland, the West Lothian Question and “English Votes for English Laws” were raised by several speakers keen to make sure the issue of how England is governed remains on the UK political agenda.

Bear in mind too, that at this stage, this is just draft legislation.  While each of the three “large” UK parties (though quite how large they will be after May’s election remains to be seen) have committed to delivering upon the legislation within a reasonable timeframe, the final details of legislation will still require substantial consideration – and with the likelihood of substantially greater numbers of SNP MPs taking seats in the House of Commons after May, this is unlikely to be the end of the story.

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