With May’s Scottish Parliamentary elections producing an SNP minority government, and in the wake of the shock Brexit vote in June, it seemed a little as if a legislative programme had fallen off the Holyrood agenda.
Last week, however, the Scottish Government published its legislative programme for the coming year and it includes some interesting proposed Bills for both lawyers and non-lawyers to consider.
The bulk of the programme reflects the need to give effect to the enhanced powers conferred on the Scottish Parliament by the Scotland Act 2016.
- Air Passenger Duty Bill (to set out the parameters of the newly devolved APD tax)
- Forestry Bill (to complete the devolution of forestry to the Scottish Ministers)
- Railway Policing Bill (to exercise the newly devolved competence over railway policing by folding the British Transport Police’s Scottish operations into Police Scotland)
- Social Security Bill (to set out a framework for social security powers ahead of the establishment of a new Scottish Social Security Agency)
- Islands Bill (to increase the powers of island councils, protect the Na h-Eileanan an Iar Scottish Parliamentary constituency boundary and build on the work of the Island Areas Ministerial Working Group and consultation)
- Gender Balance on Public Boards Bill (to require positive action to be taken to ensure gender balance in non-executive appointments to boards of public authorities in Scotland, though the Scotland Act 2016 did limit the Scottish Parliament’s powers in this area so that any action must still be consistent with the Equality Act 2010)
The following Bills will advance the Scottish Government’s agenda in areas of policy that are ‘traditionally’ devolved.
- Child Poverty Bill (to replace repealed provisions in the Child Poverty Act 2010 concerning targets and strategies aimed at reducing child poverty)
- Domestic Abuse Bill (to create a new offence of psychological abuse and provide greater support to victims of domestic abuse)
- Limitation (Childhood Abuse) Bill (to remove the three-year time bar on personal injury claims where the pursuer was under 18 at the time of the abuse, providing that the abuse was suffered after 26th September 1964)
- Wild Animals in Circuses Bill (to ban wild animals being shown or performing in travelling circuses)
These three Bills will implement a range of technical and practical legal reforms.
- Contract (Third Party Rights) Bill (to implement the Scots Law Commission’s recommendations for the creation of third party rights in contracts)
- Housing (Amendment) Bill (to ensure that registered social landlords remain classified as private sector bodies, by decreasing the regulatory powers of the Scottish Housing Regulator in the event that the Office of National Statistics reclassifies RSLs as public bodies)
- Expenses and Funding of Civil Litigation Bill (to introduce sliding caps for success fee agreements in personal injury and other civil actions; allow damages-based agreements to be enforceable by solicitors; introduce qualified one-way costs shifting (QOCS) for personal injury cases and appeals, including clinical negligence, and specify the circumstances when the benefit of QOCS would not apply; allow for new court rules in respect of third party and pro bono funded litigation, and for legal representatives to bear the cost where their conduct in a civil action has caused needless cost; allow for the introduction of a multi-party action procedure in Scotland; and enable the Auditor of the Court of Session and Sheriff court auditors to become salaried posts within the Scottish Courts and Tribunal Service)
Despite the absence of a direct manifesto pledge in relation to a second independence referendum, in the wake of the Brexit vote Nicola Sturgeon said that the possibility of another referendum was “highly likely”. The legislative programme therefore contains proposals to publish a draft Referendum Bill for consultation, to be ready for introduction “should the Scottish Government conclude – and decide to seek Parliament’s agreement – that independence is the best or only way to protect Scotland’s interests in the wake of the EU referendum”.
The program is (perhaps deliberately) a little vague on whether the Scottish Government would seek the consent of the UK Parliament / Government to the Scottish Parliament legislating for a referendum, as happened in respect of the 2014 referendum. However, the inference is that they would not, which would be likely to result in any referendum legislation being challenged either before or after it receives Royal Assent (for more on that process see our series of posts – Part 1, Part 2, Part 3 and Part 4).
It is of course the detail of these Bills that will be key, and we will be keeping a close eye on the progress of the legislative programme as Bills are introduced. In the meantime, if you have any queries on the legislative programme, or otherwise require any advice on public law or parliamentary affairs, please feel free to get in touch with Charles Livingstone or Christine O’Neill in the Brodies Public Law & Regulatory team.
My previous post discussed what the possible grounds of a challenge to a Holyrood Referendum Bill might be, and the potential results of that challenge. This post explains WHO would be most likely to bring a challenge, and HOW and WHEN they could do it.
The most obvious candidates to challenge Scottish Parliament legislation purporting to authorise a referendum would be the UK Government Law Officers – the Attorney General (currently Dominic Grieve MP) and/or the Advocate General (Lord Wallace of Tankerness). The linked piece refers to the Attorney General having “a legal duty to consider a challenge”, and he would certainly be entitled to do so. However, the Advocate General, as the senior Scottish Law Officer in the UK Government, would surely be a more likely candidate if only for presentational reasons.
Section 33 of the Scotland Act allows either Officer to refer the question of whether a Bill is within the Scottish Parliament’s competence to the Supreme Court for a decision. (The Lord Advocate has the same power, though as a member of the Scottish Government would probably be unlikely to do so.) The Supreme Court would then decide whether the Referendum Bill was within legislative competence, and if not would strike it down.
Under section 33, the Law Officers have 4 weeks from the passing of a Bill to refer it to the Supreme Court – a procedure that has never actually been used (though the Attorney General for Northern Ireland recently made a reference under the equivalent section of the Northern Ireland Act 1998, only to withdraw it shortly before the hearing). The Presiding Officer of the ScottishParliament cannot submit the Bill for Royal Assent during that period or, if a reference is made within that time, before the Supreme Court has reached a decision (per section 32). A successful challenge at that stage would therefore prevent a Referendum Bill from ever becoming an Act, at least not without further Westminster involvement.
It should also be competent for the Law Officers to challenge Scottish Parliament legislation after it has received Royal Assent. Acts of the Scottish Parliament can be attacked as being outside legislative competence by way of a post-Royal-Assent petition for judicial review – several Acts have been directly challenged this way, including legislation on fox-hunting, tobacco regulation and asbestos-related conditions. While these challenges were all brought by independent parties, I can think of no reason in principle why the Law Officers could not take that route if they wished. But why would they do that rather than use their powers of reference under the Scotland Act? That is a subject for a future post…