By Aileen McHarg

Professor of Public Law and Human Rights, Durham Law School

The Scottish Parliament and Scottish Government are approaching their 23rd birthday. The strongest and most stable of the UK’s devolved institutions, their powers have undergone two waves of expansion – in the Scotland Acts of 2012 and 2016 – and the 2016 Act cemented their position as “a permanent part of the United Kingdom’s constitutional arrangements”, unless and until the Scottish people vote to remove them in a referendum. That seems unlikely: levels of support for, and trust in, Scotland’s separate political institutions remain high

Although devolution has arguably failed to deliver the new style of politics that its founders hoped for, it has undoubtedly transformed the Scottish political system, with the Scottish National Party (SNP) replacing Scottish Labour as the major party in Scotland. It has also come to dominate Scottish political life. Key aspects of Scottish governance are now under devolved control – something vividly demonstrated during the Covid-19 pandemic. And it is Holyrood, rather than Westminster, elections that a majority of Scots now consider to be most important.   

How much power should Scotland have?  

However, some important levers of power remain in the hands of the UK institutions, and since the 2010 UK General Election, there has been a re-emergence of the democratic deficit that provided the major impetus for devolution: i.e., the UK Government and Parliament are controlled by parties supported by only a minority of Scottish voters. Thus, the question dominating constitutional debate in Scotland is not whether there should be distinct Scottish political institutions, but how much power they should enjoy – including, of course, the question whether Scotland should become independent.  

This issue has been brought sharply into focus by Brexit – a destabilising force for devolution in Scotland as elsewhere. For one thing, it has led to a reconfiguration of devolved competences. The Scottish Government and Parliament have gained powers as the obligation to comply with EU law has been lifted.  But they have been subjected to new constraints, in the form of new (negotiated) Common Frameworks, as well as the market access principles created by the United Kingdom Internal Market Act 2020 (UKIMA), which replace – but crucially do not replicate – the supports for the UK’s own internal market which were hitherto provided by EU law. Brexit has also reconfigured devolved decision-making competences in another way. UK Government Ministers have acquired new powers to act in devolved policy areas, for instance under the UK Shared Prosperity Fund which, unlike the EU funding schemes it replaces, bypasses the devolved institutions altogether.  

From a constitutional perspective, more important than the fact of this configuration of devolved competences is the manner in which it has been achieved. The development of devolution in Scotland prior to Brexit was a bottom-up process, with the UK institutions responsive – and largely deferential — to local demand for change. The Sewel Convention – which states that the UK Parliament will not normally legislate in relation to devolved matters without the consent of the devolved legislatures – similarly ensured respect for devolved autonomy and facilitated co-operation between Scottish and UK institutions in areas of shared interest or intersecting competence. 

The impact of Brexit 

However, a significant amount of Brexit and Brexit-related legislation has been enacted by the UK Parliament without the consent of the Scottish Parliament – six Bills at the latest count. Indeed, the constitutional standing of the Sewel Convention has been a major casualty of Brexit. Despite the fact that it was also put on a statutory footing by the Scotland Act 2016, the Supreme Court in the first Miller case held that it remained merely a convention, and hence was legally unenforceable. This has left the devolved institutions with no means of contesting the UK Government’s views on whether devolved consent is required for particular provision in UK legislation, or whether a refusal of consent can legitimately be overridden.   

Thus, Brexit has exposed the continuing democratic weakness of Scottish voters, and Scottish political institutions, within the UK constitutional order. Despite a majority of Scottish voters (62%) voting to remain in the UK, the Scottish Government and Scottish Parliament have not been able to influence in any meaningful way either the form of Brexit itself, or the consequential changes to the domestic constitutional framework within which devolution operates. It has simultaneously emboldened a “muscular” and centralising unionism, assertive of the primacy of UK-wide electoral majorities and of the right of the UK Government to make decisions for the whole of the UK, even in devolved areas.  

The cabining of devolved autonomy has also been exacerbated by the renewed emphasis upon, and extended meaning given to, Parliamentary sovereignty in recent Supreme Court decisions. Following on from their refusal to give any legal effect to the Sewel Convention in Miller I, the Supreme Court, in the Continuity Bill Reference, did nothing to protect the Scottish Parliament’s legislation against the first assertion of the UK Parliament’s continuing ability to legislate for Scotland in the absence of devolved consent.

In that case, a Bill which the court found had been largely within the Scottish Parliament’s legislative competence at the time it was passed, had largely been rendered outwith competence by the time of the court’s decision because, in the meantime, the Scotland Act 1998 had been amended to prevent Holyrood modifying the European Union (Withdrawal) Act 2018. 

In addition, in the Continuity Bill Reference and the subsequent UNCRC (Incorporation) Bill Reference, the Supreme Court has set about refashioning s.28(7) of the Scotland Act – previously understood as a symbolic reassertion of Westminster’s continuing sovereignty – into an active, and potentially far-reaching constraint on devolved legislative freedom. While the Scottish Parliament may amend or repeal particular pieces of UK Parliament legislation in devolved areas, it may not, according to the Supreme Court, attempt to condition the exercise of Westminster’s legislative powers by creating general rules about how such legislation is to be interpreted or operated.

In these two cases, the Supreme Court appears to be applying an extended notion of Parliamentary sovereignty which not only preserves the residual power of the UK Parliament to legislate for Scotland, but also limits the way in which the Scottish Parliament is able to legislate in devolved areas. Alongside the new constraints imposed by UKIMA, Scottish Government and Scottish Parliament legal advisers are having to rethink some long-standing assumptions about the scope and nature of devolved decision-making.  

To conclude, after an initial period of expanding autonomy and increasing constitutional recognition, devolution in Scotland has entered a new era of restrictive powers, Westminster override, and constitutional subordination. This is highly problematic in circumstances in which a significant majority of Scottish voters feel that the devolved institutions ought to have most say over the way in which Scotland is governed. It also calls into question the extent to which devolution is still able to perform its constitutional function of ameliorating the democratic deficit in the governance of Scotland, arising from the asymmetry of the UK’s territorial composition, and political divergence between its territorial units.