Devolution since the Brexit Referendum

Background

The Scottish Parliament was established in 1999 to address a “democratic deficit”: governments at Westminster without popular support from the electorate in Scotland were able to make decisions for Scotland [2].  The Scottish Parliament reflects the views of the people of Scotland in making choices on key issues such as health, education, justice and the environment. The Parliament has, under different governments, delivered free personal care, the UK’s first indoor smoking ban, minimum unit pricing for alcohol, and world-leading climate ambitions, amongst other achievements [3].

The Scottish Parliament and Government have secured and maintained a high level of trust and support from the people of Scotland.  The latest Scottish Social Attitudes survey showed 66% of people in Scotland trusted the Scottish Government to work in Scotland’s best interests, compared with 22% who trusted the UK Government to do so [4].

The devolution settlement preserved the sovereignty of the Westminster Parliament over the Scottish Parliament, but it did not create a parallel hierarchy of governments.  In 1999 governmental functions and funding in devolved areas transferred to the Scottish Government [5], which has the experience, knowledge and responsibility for developing policy and allocating funding for devolved matters.  The Scottish Government is accountable to the Scottish Parliament and people for these functions, not to the UK Government or Westminster Parliament.

As the Westminster Parliament retained its sovereignty over devolved matters, and over the scope of the powers - and actual existence - of the Scottish Parliament, the devolution settlement provided safeguards to prevent the Westminster Parliament removing its powers or legislating or acting in areas of devolved responsibility without the agreement of the Scottish Parliament and Government.

The most important safeguard is the Sewel Convention [6] that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament; this includes changes to devolved competence [7].  Principles for relations between the governments were set out in 1999 in an agreement known as the Memorandum of Understanding [8] (or MOU).  These protections were not legally binding but depend on adherence to agreements and conventions in good faith.  The protections worked as intended from 1999 until the EU exit referendum.

Since then, the UK Government has proceeded with legislation, having been refused the consent of the Scottish Parliament on nine occasions [9], has reduced the Parliament’s effective powers and has taken powers itself to act in devolved areas.   

Most significantly, the UK Government proceeded with its Internal Market Act despite both the Scottish Parliament and Welsh Senedd refusing to agree to it.  This makes it more difficult for the Scottish Parliament to bring in measures to protect the environment (like banning single use plastics) and means Scotland has to accept products from elsewhere in the UK that do not meet our standards (for example, genetically edited food).  The UK Government is also proceeding with legislation that give it power to repeal or change important protections retained from EU membership – for example or the environment, for animal welfare, workers’ rights and food standards – again without the agreement of the Scottish Parliament.