Holyrood should have say in reserved matters: Society
MSPs, and Scottish ministers, should be consulted on the application of UK Government policy to Scotland in areas reserved to Westminster, according to the Law Society of Scotland.
In its submission to the Smith Commission on the future of devolution to Scotland, the Society argues that it is "essential that a status and responsibility be accorded to the Scottish Parliament and Scottish ministers in relation to the application of UK Government policy in Scotland in relation to reserved matters".
Consultation should take place, the Society elaborates, as to the general instructions to be given to decision makers, for example, on imposing administrative sanctions on benefit claimants. "We believe that this is important for example in relation to the way in which internal review mechanisms operate with (potentially) significant knock-on effects on the operation of the tribunal system", the submission states. "Accordingly, it would be important for consultation arrangements to be in place."
"In addition, we would propose that it would be important to ensure that Scottish ministers/Scottish Government are consulted on guidance issued to decision makers in all reserved jurisdictions."
Examples the Society gives are fees being introduced to tribiunals in reserved jurisdictions, such as employment tribunals, and any changes proposed in respect of initial decision making and/or appeals in
reserved areas, such as appeals arrangements in social security.
The Society also raises the question of "structural issues" concerning the Scottish Parliament. Would better accountability be achieved, it asks, if there were more appearances by the First Minister and other ministers before committees, rather than relying on First Minister's Questions? And it adds that: "The impact of majority government in a system where the electoral arrangements were designed to avoid majority government has thrown the issue of checks and balances in the Parliament into sharp relief."
Ways of improving scrutiny of legislation before, during and after its enactment are discussed, as are specific issues linked to the scrutiny of EU legislation which falls within the Parliament’s competence.
Regarding further powers to Scotland, the Society proposes that there should be devolution of responsibility for tribunals and other dispute resolution processes in relation to Scottish cases, in connection with reserved functions. "This would result in improved accountability, cohesion in policy formulation and a unified approach to dispute resolution", it believes.
Continuing its non-partisan position, the Society does not argue for or against devolution of particular taxes, but offers an assessment of the technical implications in the event that particular taxes are devolved.
Other areas that should be considered, it suggests, are data protection, some types of business associations including partnerships and unincorporated associations, child support (so as to adopt the Northern Irish model), all legal and medical professional regulation including in relation to reserved matters, the employment tribunal system in Scotland, health and safety, and discrimination law. However it suggests that there is little scope for devolution of matters such as intellectual property and consumer protection without disruption to the UK single market.
The Society also warns the UK Parliament that there are constraints on its freedom "to reconstruct UK human rights law as it sees fit".
Michael Clancy, director of law reform at the Society, commmented: “The Smith Commission is a very important review for the constitutional future of Scotland, and our submission has been made to assist Lord Smith in examining possible new powers for the Scottish Parliament. Further devolution to Scotland raises complex political and legal issues which will require much thought and wide consultation to make it work.
“Our response highlights a number of factors which will need consideration not only by the Smith Commission, but by the Scottish and UK Governments, as well as all parties interested in Scotland’s constitutional future."
Mr Clancy added: “The timetable is tight for the Smith Commission to produce heads of agreement before the end of November and for the UK Government to produce a draft bill by the end of January. There must be a proper opportunity for broad debate and consultation on these crucially important issues as the legislation proceeds.”