Ten years on

Donald Dewar famously said of s 1 of the Scotland Act 1998: “There shall be a Scottish Parliament – I like the sound of that.”

The work of the Parliament has been prodigious since then. In session 1, 62 Acts of the Scottish Parliament were passed; in session 2, 66 Acts were passed; and so far, during session 3, there are 13 Acts of the Parliament which have received royal assent and six bills are waiting for royal assent at time of writing. In total, therefore, by the end of the summer, 147 Acts will have been passed by the Scottish Parliament since 1999. Thisrepresents a significant effort in the reform of Scots law.

Some of the Acts passed are referred to day in, day out by solicitors across Scotland, and the Society has made great effort to have the views of Scottish solicitors put forward to MSPs in the public interest, with a view to improving the law and making sure that bills before the Parliament end up as Acts which are practical, consistent and work for the greater good of the people of Scotland. Some which come immediately to mind are the Adults with Incapacity (Scotland) Act 2000, the Abolition of Feudal Tenure etc (Scotland) Act 2000, the Debt Arrangement and Attachment (Scotland) Act 2002, the Land Reform (Scotland) Act 2003, the Family Law (Scotland) Act 2006 and the Bankruptcy and Diligence etc (Scotland) Act 2007.

Alongside these “lawyers’ laws”, the Parliament has made a great impact on the lives of people in Scotland. Measures such as the Community Care and Health (Scotland) Act 2002, the Smoking, Health and Social Care (Scotland) Act 2005 and the Graduate Endowment Abolition (Scotland) Act 2008, all speak for the Parliament’s desire to make change to the general welfare, living conditions and educational possibilities of people who live here.

Continuing efforts

The Law Society of Scotland has been closely involved with the Scottish Parliament. From the outset, when we commented on the 1997 white paper “Scotland’s Parliament” and contributed by way of briefing and amendments to the Scotland Bill 1998, we have taken the opportunity to participate fully in the reform projects undertaken by the Parliament since it opened in 1999.

Of course, there are some things which the Parliament has done, with which the profession has taken issue. There were significant matters contained within the Legal Profession and Legal Aid (Scotland) Act 2007 which caused a great deal of concern amongst the profession and where the Society made significant representations about the vires, competence and ECHR compliance of the bill. As a matter of fact, the bill was amended in many material respects as a direct result of the Society’s efforts.

The process of reform goes on and the magnitude of the effort has not been stinted by the passage of time. In 2007-08, the Society responded to 70 consultations on law reform matters and gave oral evidence on eight occasions. Some of these were to the Commission on Scottish Devolution (the Calman Commission), which published its final report on 15 June 2009.

Influence on Calman

The headlines naturally focused on income tax, the devolution of further areas of the law (as wide ranging as national speed limits and airgun regulation), and the political debate over Scotland’s constitutional future. However, the Law Society of Scotland was more concerned with and indeed had most input on other proposals which perhaps did not make the headlines but were nevertheless extremely significant.

The Society’s response to the Calman Commission has involved considerable work on behalf of Society staff and committee members alike. The constitutional law subcommittee, convened by Christine O’Neill of Brodies, has led the Society’s response to the Commission, but the tax law, pensions law, insolvency law, mental health and disability, rural affairs, and criminal law committees have also been called on for their views on aspects of the Commission’s proposals. The Society attended oral evidence sessions in October 2008 and February 2009 and provided the Commission with written evidence on five separate occasions from July 2008 to May 2009.

Better lawmaking

The Society’s influence can be seen most clearly in the Commission’s recommendations on parliamentary procedure, and the report makes a number of explicit references to evidence given by the Society on this area. Taking a step back from the political debate, the Society’s focus was on how the Scottish Parliament could work better as a body to reform Scots law.

Perhaps most significantly, the Society raised the issue of the lack of scrutiny during stage 3 of the legislative process, especially given the practice that has developed of timetabling all of stage 3 to take place in a single day. If a major amendment has been passed, the situation that therefore arises is one where MSPs have to make a final decision on the merits of the bill only very shortly after a significant change has been made. The Society led the way in recommending that stage 3 should be split into two separate proceedings on different days, to open up the gap between the second main amending stage and the decision on whether to pass the bill – now proposed by recommendation 6.2 of the Commission.

In the course of the consultation, the Society raised its concerns about the loss of control of legislation by Holyrood once a legislative consent motion had been granted. This was particularly the case where amendments to UK Parliament bills were made after a legislative consent motion had been granted. Recommendation 4.3 calls for detailed and ongoing communications between the Parliaments about legislative consent motions, especially if the bill is amended.

The Society also suggested that the Presiding Officer should, when providing the statement that an ASP is within legislative competence, state why it is within competence, i.e. he should issue a “positive statement” as well as the current “negative” one. This was to address the fact that a Scottish lawyer cannot take an Act of the Scottish Parliament at face value but has to ask whether it is within the competence of the Parliament to enact. Although the Commission took the view that this was going too far, the report does recommend that the explanatory notes which accompany bills should give a general account of the main considerations that informed the statement on legislative competence under s 31(1) of the Scotland Act.

The Society’s evidence also focused on more specific details, such as the suggestion that the definition of “social security purposes” in section F1 of sched 4 could be read literally to prevent the Scottish Parliament from legislating in areas like legal aid or prescription charges where reference is made to low income or other social factors. The report recommends that this should be clarified. The Society also gave evidence on the devolution of tax law, taking the view that some taxes, including SDLT, could be relatively easily devolved. However, the Society suggested that the underlying law was sometimes of just as much importance as the right to vary a rate of tax, citing the interaction between charities law and tax relief as an example of this. After others made similar submissions, the report recommends that there should be a single definition of “charity” and “charitable purposes” applicable for all purposes throughout the United Kingdom.

While not all the Society’s suggestions were taken on board, the impact of those that have been adopted will be considerable, and if implemented will have a substantial effect on the Scottish Parliament and on Scots law for the future.

I am grateful to Ross Sanderson for his assistance in writing this article.

Michael Clancy is Director of Parliamentary Liaison at the Law Society of Scotland

Public law: expanding practice area

Devolution has brought a huge growth in work in the public law area

Every Scots lawyer will have a different perspective on how the first decade of devolution has impacted on their own practice. There would certainly be cause to doubt those who believe that the Scottish Parliament and Government have made no difference: the conveyancer cannot ignore land law reforms, the criminal defence agent is now au fait with the concept of “devolved competence”, and my pipe-smoking partner faces daily eviction from his office to the firm’s car park. From the perspective of a solicitor who claims to practise in the field of public law, though, the significance of devolution is particularly acute.

In the first place there is the very idea of a “public law practice” as no longer just the fantasy of administrative law anoraks. It would be wrong, of course, to say that before 1999 there were not solicitors in Scotland who advised clients on legislative reform, on the powers of the Westminster Parliament and on questions of constitutional importance: there is a long and strong tradition of in-house legal advice to the Scottish public sector and there were always recognised specialists in private practice.

There has, however, been an enormous growth over the past 10 years in the number of solicitors who spend a very large part of their time advising on such matters as the legislative competence of the Scottish Parliament, parliamentary procedure, statutory interpretation, freedom of information and human rights. Aside from those now employed by the Government Legal Service for Scotland – which has been described as the “third largest law firm in Scotland” – and in local government, NDPBs and elsewhere in public service, most sizeable law firms now provide outsourced legal advice to public bodies as well as to clients who work with or have disputes with public authorities.

These new streams of work are not simply the consequence of UK-wide law reform (of which the Human Rights Act is an obvious example), but of the peculiarities of the Scottish model. So, for example, in the first few years of devolution, advice and representation before parliamentary committees was needed for clients affected by private bills for the construction of railways and trams. That need has now largely dissipated as a result of the Transport and Works (Scotland) Act 2007. In a similar vein, advice is now regularly sought on whether a particular proposal by the Government or Parliament relates to a matter which is reserved to Westminster, or is a breach of EU law, and would therefore be vulnerable to legal challenge if implemented.

Devolution has brought with it a variety of public law work which was, it is fair to say, previously unknown outside of London. In the past week this public law practitioner has participated in the hugely successful conference of the Scottish Public Law Group (www.splg.co.uk); advised on the implications of the proposals to extend the Freedom of Information (Scotland) Act 2002 to private bodies who provide public services; and spent three days in the Court of Session pursuing the judicial review of an Act of the Scottish Parliament on the grounds of breach of Convention rights.

Needless to say the purpose of devolution was not to provide solicitors with a more varied and stimulating professional life, although that has certainly been one consequence of the project. Perhaps more importantly, devolution has brought into being a whole generation of Scots lawyers who have in-depth understanding and appreciation of public law issues and who bring those to bear on behalf of their clients on a daily basis.

Calman: an anticlimax?

The Calman Commission recommendations are not likely to have a significant impact on the bigger picture

Ten years after the establishment of the Scottish Parliament, it is neither possible to assent to Tam Dalyell’s proposition that Scotland is on “a motorway without an exit” nor to George Robertson’s prediction that the reform “would kill nationalism stone dead”. What may, however, be agreed is that the Parliament is here to stay within some constitutional arrangement or another.

The larger picture will scarcely be affected by the distinctly underwhelming Calman Commission report. Some of its recommendations seem likely to be adopted, given a fair wind from the major parties at Westminster – the same political parties that agreed its remit and conditioned its limited aims. The proposed adjustment to the subject-matters devolved would result in marginal net gains, but do not amount to a hill of beans.

The financial recommendations designed to ensure that some tax revenue is set and raised in Scotland are subtle and harder to assess. But even if having a different Scottish income tax rate is practicable, the practicality and utility of differing are very doubtful. As more than two-thirds of the cost of Scottish government would still come by way of a Whitehall grant, there is room for doubt over whether Calman’s big idea would significantly enhance accountability, and it is fanciful to think that it will reshape arguments – in Scotland or down south – over Scotland’s share of resources.

The report’s proposals, if adopted, would not move Scotland significantly closer to independence (“in Europe”) or to full federalism, but then they were not meant to.

Private law: boost for the Scottish system

Scots private law has been reinvigorated by the work of the Scottish Parliament

For anyone concerned with the health of Scots law the introduction of the Scottish Parliament has been welcome.

Perhaps the Parliament has not lived up to the expectations of the people of Scotland, but arguably such expectations were overoptimistic given the limited remit of the Parliament and the lack of fiscal powers. The most significant changes however have been in relation to the process of enactment itself. Lobbying Westminster or perhaps Brussels is an expensive exercise. The ease with which pressure groups or individuals can access the Parliament, respond to calls for evidence or use the public petition procedure has transformed the lawmaking process and brought the Parliament much closer to the people.

Would the long overdue abolition of the feudal system have passed into statute without the Parliament? The law in relation to adults with incapacity was put onto a firm and modern footing and the Parliament had the capacity to tweak that legislation when parts were found not to be working as intended. Scots family law has received attention and is now modern and forward looking. Had Scotland been forced to rely on Westminster it seems unlikely that such progress would have been made. Some attention to the law of contract is however overdue. The postal rule is long overdue for replacement and more comprehensive statutory treatment of contract law in general would be useful.

Calman offers little in relation to Scots law, and seems to further muddle the law in relation to business organisations, particularly as regards corporate insolvency proceedings. Necessarily such proceedings impinge on property rights, which are devolved, and the proposals in this area do not address this. In partnership and unincorporated associations Scots law has some distinctive features. It seems unlikely that time would be found at Westminster to update them. That seems to be a missed opportunity.

The Parliament: here to stay

Some of the main points from the Calman Commission report

Devolution has been a real success. The Scottish Parliament works well in practice; it is in general popular with the people; it has embedded itself in the constitution of the UK and the consciousness of the Scottish people. It is here to stay.

The Commission under Professor Sir Kenneth Calman, Chancellor of the University of Glasgow, is unequivocal in reaffirming the settlement established by the Scotland Act; and in truth there is no discernible movement in Scotland seeking to reverse the 1998 arrangements. However its report caught the headlines for its proposals to improve the financial accountability of the Scottish Government and Parliament.

With independence beyond its remit, the Commission nevertheless highlighted the integrated nature of the UK economy, and produced recommendations explicitly designed not to undermine this. Similarly, concluding that our tax gathering system is relatively efficient, its fiscal proposals are designed to avoid undue compliance costs.The present funding system, it states, mainly by grant from the UK Parliament, has brought stability but has shortcomings because the Scottish Government and Parliament are not accountable for raising revenue in the same way that they are for spending money.

Taxes that can be devolved without much risk of causing significant economic distortions are stamp duty land tax, the aggregates levy, landfill tax and air passenger duty. Adding to these, to provide a much more substantial measure of financial accountability, it recommends that the Scottish Parliament should be able to determine a Scottish rate of income tax, applying to all rates – but not to change the differential between the tax bands. (This should not apply to tax on income from savings and distributions, due to the administrative burden that would result, but the yield from such tax should be shared on a formula basis between the Parliaments.)

Calman also believes that it would increase accountability if the Scottish Parliament had to take a tax decision when it sets its budget. To achieve that, the UK Government should reduce the income tax rate applying in Scotland, across all bands, by 10p in the pound, and reduce the grant to the Scottish Parliament by an equivalent amount. Thus the Parliament would have to set its own rate to make up the deficit, even if it maintained the status quo.

If the same principle were applied to all four taxes identified for devolution, over one third of Scottish Government spending would be funded by taxes decided and raised in Scotland.

The Parliament should also have the power to borrow in order to fund capital spending; and to legislate, with the agreement of the UK Parliament, to introduce specified new taxes that apply across Scotland.

Turning to lawmaking powers, the report finds that the division of legislative responsibilities in the Scotland Act was well thought through, and works well in practice. Wherever the boundary is set, it observes, there will be areas where the responsibilities of the different areas of government interact with one another, hence the need for more effective arrangements for co-operation.

Against that background it confines its attention to those areas where there appear to be problems or pressures for change. Regulation of airguns, drink driving limits and the national speed limit should be added to the devolved powers; regulation of insolvency, the health professions, food content and labelling, and power to define “charity” and “charitable purposes” should return to Westminster. The need for dual registration of charities should end.

The Commission also advocates closer joint working on matters including immigration, to agree sustainable local variations to suit Scottish needs; the wellbeing of children of asylum seekers; and housing benefit and council tax benefit, where connected to devolved policy changes.