HMG Devolution Law Training Course

This speech was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

Welcome and introduction from the Advocate General for Scotland.

Over the next two days you will hear about how devolution works in practice in the United Kingdom, in each of the three parts of the UK which enjoy devolved government. I hope you will enjoy finding out more about how the mechanisms of this system work, from a technical perspective, but I would ask you to bear in mind what devolution aims to do, and has achieved, at a conceptual level. Devolution is a scheme of decentralisation which moves power and responsibility outwards and downwards within the state, closer to the people. After it came to office in 1997 the Labour Government’s programme of devolution to Scotland, Northern Ireland and Wales, was a substantial change to the governance of the United Kingdom, which had previously been highly centralised in Westminster. But it also reflected a British tradition – that constitutional change is organic, rather than a fundamental restructuring. I supported that change then – and ever since I first became interested in politics as a boy. The party I joined had already been the party of “Home Rule”, as it was called, for nearly a century at that time. I did not imagine then just how closely and personally involved I would become with this historic development. When you pick up a copy of the Scotland Act, the first thing you read, under the heading “The Scottish Parliament”, in section 1 subsection 1, is: “There shall be a Scottish Parliament”. The sentence has, and was intended to have, an historic ring to it.

If you continue reading the Act, and your patience extends to section 87, you will find a less imposing, but from my point of view just as important provision, which reads: “In Schedule 2 to the House of Commons Disqualification Act 1975 (Ministerial offices) and Part III of Schedule 1 to the Ministerial and other Salaries Act 1975 (salaries of the law Officers), after the entry for the Solicitor General, there is inserted – “Advocate General for Scotland” “ And on that statutory basis, I am paid a monthly salary. That rather unprepossessing section creates the office of Advocate General, and it was necessary to create such a post because until devolution, the Lord Advocate, together with the Solicitor General for Scotland, was the advisor to the UK Government on matters of Scots law. On devolution, those officers became the legal advisers to Scotland’s new devolved government. Consequently, there was a vacancy for a Scots lawyer at the heart of UK Government, the Advocate General. That is a post I have held since May 2010, following the General Election. I am the third person to hold that office. As you will be aware, or as you will become aware over the course of the next two days, many areas of law, such as company law, banking, taxation, competition, insurance, road traffic law, drug regulation, defence, foreign affairs and social security (pretty substantial fields) are reserved to the Westminster Parliament. In those reserved areas, the Government prepares legislation which will apply in Scotland, and it needs expertise to determine if and how that legislation will work in Scotland. My office also acts for the UK Government before the Scottish courts, and I also have some specific statutory functions in relation to the devolution settlement. I share some functions with the Attorney General and Solicitor General for England and Wales.

It is worth noting that the Attorney is also “Advocate General for Northern Ireland” and so fulfils a similar role within the UK Government for Northern Ireland as I do for Scotland. Devolved Government in Northern Ireland, the Northern Ireland Executive, is advised by the “Attorney General for Northern Ireland”, John Larkin QC. In Wales, the Counsel General, Theodore Huckle QC, advises the devolved Welsh Government. As I said earlier, I could hardly have anticipated as a boy that I would be so closely involved with the creation of a Scottish Parliament. In the mid-nineties, as MP for Orkney and Shetland, I took part in a process called the Scottish Constitutional Convention – one of the events which led to the creation of the Scottish Parliament. My party argued that a devolved legislature in Scotland should be elected under a system of Proportional Representation – and in that debate we were largely successful. After devolution, the Labour Party, as expected, won the first Scottish Parliamentary election. But, again, as expected, it did not gain an overall majority. After the election there was a week of formal negotiations, after which the Liberal Democrats formed a coalition government with Labour, with Donald Dewar as First Minister and myself as Deputy First Minister (and I was also Minister for Justice in that first Coalition Government, later Minister for Enterprise and Lifelong Learning).

At first, like many MSPs, I retained my Westminster constituency, but from the 2001 UK election I was solely MSP for Orkney. I stood down as an MSP at the 2007 Scottish Parliament election and later that year was appointed to the House of Lords. That 2007 election saw the formation of the first Scottish National Party government in Scotland, an event which demanded some response from the parties who supported devolution rather than full separation. That response came in the form of the “Commission on Scottish Devolution” chaired by Kenneth Calman, an eminent Scottish doctor, and in the Spring of 2008 I was asked to join that project.

Work on that Commission was fascinating because it involved considering all the functions of government in the modern world and setting out reasons why some should, in principle, be devolved and some reserved to central government. The resulting report of the Commission, published in June 2009, makes valuable reading for any student of devolution, or indeed, government. The Commission’s task was to re-examine the relationship between Scotland and the other nations of the United Kingdom and consider how that relationship should evolve in the 21st century. We concluded that the first ten years of devolution had been a success, and had demonstrated that it was possible to have a Scottish Parliament and Government operating within the parameters of the United Kingdom. We looked at how to build on that success, within the context of the UK’s political, economic and social Union. Some things, such as defence and foreign relations, could only be dealt with in the Westminster Parliament, where every part of the country is represented, if there is to be a Union at all. That Union is asymmetrical, with four nations all very different in size, with institutions which have evolved in different ways. Scotland for example, has always had a separate legal jurisdiction, unlike Wales, which shares a court system with England. Northern Ireland has, since the 1920s, enjoyed the power to set its own time zone, unlike Scotland, England or Wales. (In the nineteenth century, Ireland had a different time zone from Great Britain. Although an Act of 1915 introduced measures for one UK time zone, it was not thought necessary in the Government of Ireland Act 1920 to reserve time zones – the new Northern Ireland government could, if it wished, align its time zone with the rest of the island.) So, reflecting the differences between the four nations, the devolution settlements are asymmetric. We looked at countries with federal constitutions and there is much to learn from them about how different levels of government can co-operate, but the solutions which work in federal system (eg Australia) with several states of roughly similar size, do not always work in the UK.

As well as being a political Union, the UK also enjoys a highly integrated economy, and that integration works to the advantage of Scotland, Wales and Northern Ireland. We concluded that there were powers which could be devolved which would be important for economic growth, but that a devolved administration could not run a separate macro-economic policy. The UK is also a social union – with so many shared cultural values – and family ties. I wonder, for example, how many people in this room can look at their families and say they are exclusively English, Welsh, Scottish or Irish? That is a fact which must inform our devolution arrangements. For example, a shared concept of ‘fairness’ and common expectations would suggest that social security payments should be paid on the same basis across the UK, according to need. Taking social security as an example – old age pensions, unemployment benefit, allowances and credits to support children, carers and families. It would be possible to envisage a system where those functions were decentralised. In fact, few nations states do so – like defence, social security represents a pooling of resources against common risks. There is an element of ‘insurance’ here, and safest course is to share risk as widely as possible. Different parts of the country might be exposed to risk at different times (for example, the risk of unemployment is not spread evenly) just as some parts of the country may be able to make greater contributions (for example, from oil revenues) during some periods. On the other hand, the delivery of public services (for example, health services or education) is best delivered by those who are most accountable to the users of those services. (Sixty per cent of public spending in Scotland now lies within the responsibility of the Scottish Parliament). A separate and distinct education system was an important factor in the survival of Scottish national identity -schools, colleges and universities had always been administered at a Scottish level. The arrival of the Scottish Parliament added greater democratic scrutiny and accountability to that system. It is hard to see many advantages in having Scotland’s schools run by Westminster. I mention these examples because when you look at the mechanisms by which the devolution settlements are run, and particularly the way in which the boundaries between reserved and devolved matters are drawn, it is useful to ask yourself: why? Why is the UK’s borders and immigration policy reserved, but the planning of windfarms is devolved? My understanding is that you should find the answers according to first principles. Similarly, you should bear in mind the way in which the settlement works in each devolved administration. In Scotland, everything which is not expressly devolved is reserved – a model of devolution found in the Government of Ireland Acts from the early part of last century. Fairly large areas of government activity remain the responsibility of the UK Government and are subject to legislation in Westminster. The Welsh settlement, as you will hear in this course, is based on fundamental difference – that the areas to be devolved are specified in the legislation rather than the areas to be reserved (a model which was attempted for Scotland in 1978, in the first attempt at devolution for Scotland).

Also, you should remember than devolution is about the accountability of government at a level closer to the people. The Calman Commission, for example, was not primarily concerned with tinkering at the boundaries of reserved and devolved competence. (There is a process – which you will hear about in this course – by which minor changes can be made to the settlement by subordinate legislation scrutinised by both Parliaments). Our main concern was to improve the accountability of the Scottish Parliament and Government. The Scottish Parliament has the freedom, within its competence, to determine how its budget is spend, and it is accountable to the electorate on that basis. But its spending power is not matched by taxation responsibilities – funding is determined overwhelmingly by the block grant from Westminster. We recognised that the opportunities for devolving taxation were constrained by the need to avoid economic distortions across the Union, but we also knew that the current system of funding was unsustainable – there has to be a link between spending decisions and taxation decisions. The Calman Commission concluded that the Scottish Parliament must no longer be wholly dependent on a grant from Westminster. That principle enjoys cross-party support. How we could achieve that aim was a complex and difficult question, and this is not the place to set out the proposals in detail. Suffice to say that we now have a Bill going through the UK Parliament which will provide that additional accountability – a Bill which, as set out in the Coalition agreement, enjoys the support of the Liberal Democrat and Conservative parties. From a personal point of view, having campaigned for a Scottish Parliament, having been a member of that Parliament and its government, and having been a member of a Commission to consider its powers, I now find myself taking a Bill through the House of Lords to extend its powers.

It is important that any changes to the devolution settlements should be result of deliberate and careful consideration by bodies such as the Calman Commission, by Parliament itself and by public consultation. Our shared concern as lawyers is with the Rule of Law – devolution is a social invention but it is also a legal construction. It has been largely built by lawyers, and it is subject to scrutiny by the courts. I am acutely aware of the role Government lawyers play in supporting the devolution arrangements – many of them working in my own Department, and also across Whitehall departments, where lawyers have to work closely with colleagues in Scottish departments.

This coalition government is committed, in its founding agreement, to a ‘respect agenda’ where the devolved administrations are concerned. We, as lawyers in UK Government, must recognise the wide range of responsibilities which are carried by Ministers in devolved administrations, and recognise that those Ministers are answerable to, and under the scrutiny of, their devolved legislatures. We expect this respect to work both ways, to be mutual. As I said, changes to the settlements should be deliberate, and not the result of accident, or of acquiescence to legislation which encroaches into reserved areas. Where our responsibilities have an impact on those of the devolved administrations, we should share our proposals with them as soon as possible – and then ensure that we listen carefully to what they have to say. The earlier we can smoke out any potential difficulties, the better.

Similarly, in course of our duties we are looking out for impending decisions of the courts in Strasbourg and Brussels, and we may sometimes be in a better position than our colleagues to see what is on the horizon. I know from experience that lawyers in government in Scotland – and I am sure the position is the same in Northern Ireland and Wales – would welcome a ‘heads up’ on developments in the international courts which affect their responsibilities. Their interest may be fairly obvious in some cases – crime and justice, for example – but in other cases their interest may be more subtle. You might hear the phrase “differential implementation” in the next two days – the devolved administrations have a particular interest in the extent to which EU law obligations can be implemented differently within a Member State.

As well as working co-operatively with your colleagues in the devolved administrations, I would also urge you work closely with each other. The devolved administrations do have one advantage over you – they can reach a collective view very quickly, and in their dealings with the UK Government, present an admirably united response to any difficulty. By its nature, the UK Government is a many-headed beast – it has many competing objectives, and it must respond to all the problems the world throws at it. So, if, for example, we have to consider the extend to which a devolved legislature can restrict or control the sale of alcohol in its territory, some within UK Government will welcome a public health initiative, and others will be wary of an encroachment into the UK’s single market. Others will enquire about compliance with EU law, noting that it is the UK which takes responsibility for our obligations under international treaties. Bringing all these different interests together to present a united view requires a fairly nimble, and disciplined, response from government lawyers and their clients. Your legal and administrative skills will be tested to the full, a prospect which I hope you will relish.

Over the course of today and tomorrow, you will experience the many joys of the three settlements (perhaps the arrangements for government of London can wait until another day). You will here about the differences between the devolution model used for Northern Ireland and Scotland, and that for Wales; about the EU law and ECHR law constraints on the devolved administrations; about the difference between ‘devolved competence’ and ‘legislative competence’… but I would also urge you to make time to develop contacts and friendships with each other, and that those ties will assist you when you come to deal with live issues back in your offices. 10

One of those live issues – and I would like to leave you with this thought because it has been a concern of mine since taking up the office of Advocate General – is that you must use you reservations. That is, please remember to consider legislating for Scotland when you are preparing legislation in a reserved area. Much of government in Scotland is in the reserved sphere and much of Scots law is reserved. If you are working on a reserved project – (for example, energy production in National Parks) – and you bring forward legislation for England and Wales, or England, Wales and Northern Ireland – please remember that if you decide not to cover Scotland – (remembering, again for example, that although National Parks are devolved, energy production is reserved) that will leave a lacuna in provision for Scotland. Either Scotland is left without provision which is of value to the rest of the UK, or, if Scottish Government then tries to legislate in that area, the devolution settlement is weakened. (It is harder to argue that something is reserved if we have failed to legislate for that thing). You may have to consider different provisions for Scotland – for example to comply with Scots law – and that may require more work, but: when you legislate for Scotland on a reserved matter, you are honouring the settlement just as much as you are by respecting the Scottish Parliament’s right to legislate in devolved areas.