By Joanna George
Research Associate, University of Cambridge
The process of devolution to Scotland started with the Scotland Act 1998, however calls for devolution to Scotland (in its current form) began in the mid-1970’s. Since the 1998 Act, further powers have transferred to the Scottish Parliament via the Scotland Act 2012 and Scotland Act 2016. Scotland is the only nation within the UK to have held an independence referendum seeking to become a sovereign state.
Despite the rejection of independence by Scots in the 2014 Scottish independence referendum, calls for a second referendum persist. This has been exacerbated by the 2016 Brexit referendum result. Scotland voted 62% in favour of remaining within the EU, yet because the referendum was a UK-wide vote Scotland had to leave the EU with the rest of the UK. This, alongside weak intergovernmental relations, has raised serious concerns and questions about Scotland’s constitutional future.
Devolution in the making
During the 1970’s there were growing calls for devolution in Scotland and Wales. The Royal Commission on the Constitution, which was set up to look at the structures of the UK constitution, endorsed devolution in Scotland and recommended the establishment of a Scottish Assembly. The Scotland Act 1978 was passed to facilitate a referendum on whether Scotland should have its own Assembly.
The Act specified that 40% of the Scottish electorate had to support the Act for it to come into force. The referendum was held in 1979 and 52% of votes supported the creation of a Scottish Assembly, however only 33% of the electorate turned out to vote. This meant that the creation of a Scottish Assembly was paused until further support from political parties and civil society was gained.
Under the New Labour Government, a new Scottish devolution referendum was held. It proposed two questions. Firstly, should there be a Scottish Parliament (74% said yes), and secondly, should a Scottish Parliament have tax-raising powers (63% said yes). Unlike the 1979 referendum, the Scotland Act 1998 was introduced after the referendum result to promote the idea that it expressed the will of the Scottish people.
The Act was similar to the Government of Wales Act 1998 in that it focused on executive devolution. However, unlike Wales, Scotland had a reserved powers from the beginning with the power to enact Acts of the Scottish Parliament. Reserved powers are issues that have a UK or international remit and remain the sole responsibility of the UK Parliament. Reserved matters which cannot be decided by the Scottish Parliament include elections to the UK Parliament, broadcasting, currency issues and foreign affairs.
Alongside a Scottish Parliament (which is sometimes referred to as ‘Holyrood’) with basic tax-raising powers, the Act created an Advocate General for Scotland, a UK Law Officer, who has power to intervene on issues relating to the Scottish Parliament’s legislative competence. The role also advises the UK Government on Scots law which is a distinct legal and judicial system retained from the 1707 Treaty of Union with England. A new Scotland Office in Whitehall was also created to assist the Secretary of State for Scotland.
Further devolution Acts followed in the 2010’s. The Scotland Act 2012 broadly implemented the recommendations of the Calman Commission by devolving further powers to the Scottish Parliament, including the ability to set a Scottish rate of income tax and a mechanism to devolve further tax powers. The Smith Commission review of devolution, which was created following the Scottish independence referendum, proposed entrenching the permanence of the Scottish Government and Scottish Parliament.
The Scotland Act 2016 provides for this with a referendum “lock” against the unilateral abolition of the Scottish Parliament unless requested by the Scottish people in a referendum. This, however, could be repealed (cancelled) by a further Act of Parliament by the UK Parliament. The Scotland Act 2016 also enables the Scottish Parliament to raise more than 50% of the money it spends.
Scottish independence, Brexit and future developments
The Scottish Parliament has 129 members (MSPs) who are elected through the Additional Member System (AMS). This means that Scots have two votes. 73 MSPs are elected based on constituency through First Past the Post (FPTP) whilst 56 MSPs are elected as additional members via a party list system in each region.
In 2011 the SNP gained an absolute majority of seats in the Scottish Parliament elections. One of the SNP’s manifesto commitments was to hold a Scottish independence referendum and, considering this, the UK Government accepted that ‘the future of Scotland’s place within the United Kingdom is for people in Scotland to vote on’. In 2014 the pro-Union ‘Better Together’ campaign won the Scottish independence referendum by 55%.
Whilst the referendum was pitched as a ‘once in a generation’ vote, there have been numerous calls for another one. The 2016 Brexit referendum vote is a key instigator for this, with Scotland voting to remain within the EU. One of the main arguments of the ‘Better Together’ campaign in the 2014 independence referendum was that Scotland enjoys membership of the EU because of its membership of the UK. When the UK left the EU in January 2020 this no longer applied.
As a result of Brexit, Scottish devolution has been impacted. According to the Sewel Convention, the UK Parliament will ‘not normally’ legislate on devolved matters without the Scottish Parliament’s legislative consent. Yet since the 2016 Brexit referendum the UK Government has repeatedly done so, most notably in relation to the European Union (Withdrawal Agreement) Act 2020 and the UK Internal Market Act 2020.
As a consequence, intergovernmental relations between the Scottish Parliament and the UK Government have become strained, leading to the recommendations of the Dunlop Review and Review of Intergovernmental Relations. The problem has also been accentuated by the fact that the UK Government is increasingly said to be representing England and English interests who lack political representation within the Union. This has been described as ‘Muscular Unionism’.
The UK Government has dismissed the idea of facilitating a second Scottish Independence referendum despite calls from the Scottish Government to grant permission using a section 30 order. This would be the only method for Scotland to legally secede from the Union. The Scottish Government published a draft Scottish Independence Referendum Bill in March 2021 and, at present, the Scottish Government has expressed interest in holding a second independence referendum before the end of 2023. Whether it will do so remains to be seen.