Scotland Act 2012

Scotland Act 2012
Act of Parliament
Long title An Act to amend the Scotland Act 1998 and make provision about the functions of the Scottish Ministers; and for connected purposes.
Introduced by Michael Moore
Territorial extent United Kingdom
Dates
Royal assent 1 May 2012
Other legislation
Amends Scotland Act 1998
Amended by Scotland Act 2016
Status: Amended
Text of statute as originally enacted
Constitutional documents and events (present & historical) relevant to the status of the United Kingdom and legislative unions of its constituent countries
Treaty of Union 1706
Acts of Union 1707
Wales and Berwick Act 1746
Irish Constitution 1782
Acts of Union 1800
Parliament Act 1911
Government of Ireland Act 1920
Anglo-Irish Treaty 1921
Royal and Parliamentary Titles Act 1927
Statute of Westminster 1931
United Nations Act 1946
Parliament Act 1949
EC Treaty of Accession 1972
NI (Temporary Provisions) Act 1972
European Communities Act 1972
Local Government Act 1972
Local Government (Scotland) Act 1973
NI Border Poll 1973
NI Constitution Act 1973
Referendum Act 1975
EC Membership Referendum 1975
Scotland Act 1978
Wales Act 1978
Scottish Devolution Referendum 1979
Welsh Devolution Referendum 1979
Local Government (Wales) Act 1994
Local Government etc. (Scotland) Act 1994
Referendums (Scotland & Wales) Act 1997
Scottish Devolution Referendum 1997
Welsh Devolution Referendum 1997
Good Friday Agreement 1998
Northern Ireland Act 1998
Government of Wales Act 1998
Human Rights Act 1998
Scotland Act 1998
Government of Wales Act 2006
Northern Ireland Act 2009
Welsh Devolution Referendum 2011
European Union Act 2011
Fixed-term Parliaments Act 2011
Scotland Act 2012
Edinburgh Agreement 2012
Scottish Independence Referendum 2014
Wales Act 2014
European Union Referendum Act 2015
EU Membership Referendum 2016
Scotland Act 2016
Wales Act 2017
EU (Notification of Withdrawal) Act 2017
Invocation of Article 50 2017
European Union (Withdrawal) Act 2018

The Scotland Act 2012 is an Act of the Parliament of the United Kingdom. It sets out amendments to the Scotland Act 1998, with the aim of devolving further powers to Scotland in accordance with the recommendations of the Calman Commission.[1] It received Royal Assent in 2012.

Main Provisions

The Act gave extra powers to the Scottish Parliament,[2] most notably:

Calman Commission

The proposed legislation was based on the final report of the Calman Commission, which was established by an opposition Labour Party motion in the Scottish Parliament in December 2007, against the wishes of the Scottish National Party minority government.

Professor Jim Gallagher, the civil servant who drafted the Bill, was appointed to advise the Scotland Bill Committee of the Scottish Parliament, convened by Wendy Alexander, whose Parliamentary motion started the whole Calman process.[4]

Passage

The Bill was presented to the House of Commons by the Secretary of State for Scotland, Michael Moore, on St Andrew's Day (30 November), 2010, and received an unopposed second reading on 27 January 2012.

The UK government stated that it would not pass the bill unless it had obtained a legislative consent motion from the Scottish Parliament,[5] although the Parliament of the United Kingdom could have passed the Bill in any case.[6] The governing Scottish National Party indicated that it planned to block the bill.[7][8] However, after a deal was reached between the two governments on 21 March 2012,[9] the Scottish Parliament unanimously passed a legislative consent motion in respect of the Bill on 18 April 2012.[10]

Reaction and analysis

The Secretary of State for Scotland, Michael Moore, described the legislation as the largest transfer of fiscal powers from central Government since the creation of the United Kingdom.[11]

Although the Scottish National Party supported some parts of the Bill as introduced, it opposed others. In particular, it considered that the income tax proposals were flawed.[12] However, the SNP agreed to support the Bill, after the proposals to return certain powers were dropped,[13] and agreement was reached that the details of the income tax changes would be subject to approval by MSPs.[14] After the Bill received legislative consent from the Scottish Parliament, the Cabinet Secretary for Parliamentary Business and Government Strategy, Bruce Crawford, MSP argued that, although the Bill would not harm Scottish interests, it represented a missed opportunity and had been overtaken by events, in particular the return of an SNP majority government in 2011 and the consequent independence referendum.[15]

Amendment

There is a proposal to amend section 57(2) of the Scotland Act 1998, which provides that the Lord Advocate, as a member of the Scottish Executive, has no power to do anything in contravention of the European Convention rights. Given that, alongside being the adviser to and representative of the Scottish Government in Scots law, the Lord Advocate is head of the system of criminal prosecution in Scotland and every prosecution in a Scottish court proceeds with his/her authority, this provision effectively allows any human rights issue raised in any criminal proceedings in Scotland effectively to be appealed to the UK Supreme Court as a constitutional "devolution issue".[16] The Supreme Court consists of two Supreme Court judges from Scotland and 10 judges from other parts of the United Kingdom. When hearing appeals the Supreme Court sits with a bench of at least five judges, so even if both Scottish judges are present for a Scottish appeal, the majority of the bench will be judges who may not be especially well versed in Scots law and criminal procedure. According to Lord Hope of Craighead, the Deputy President of the Supreme Court, non-Scottish judges will in practice defer to their Scottish colleagues in Scottish cases, and often simply concur with judgements written by the Scottish judges. However, the situation is seen by some, including the Scottish Government, as undermining the status of the High Court of Justiciary as the final court of appeal in criminal matters in Scots law, and even of undermining the integrity of Scots law. The Advocate General for Scotland asked an expert group, chaired by Sir David Edward, to consider this issue and make recommendations, which led to the amendments to the Scotland Bill proposed by the UK Government. The Scottish Government remains concerned that the amendments may not fully address the issue, particularly as a result of the decision of the Supreme Court in Fraser v HM Advocate, and appointed their own expert group, chaired by Lord McCluskey, to consider the matter and report back.

See also

References

  1. ↑ Gibson, Kenneth, "Implementing the Financial Powers in the Scotland Act 2012", Scottish Parliamentary Review, Vol. I, No. 2 (Jan, 2014) [Edinburgh: Blacket Avenue Press]
  2. ↑ "Scotland Act 2012". Act of 2012.
  3. ↑ "Scotland Act 2012, Scottish rate of income tax". Act of 2012.
  4. ↑ Dinwoodie, Robbie (10 December 2010). "Professor who drew up Bill to advise on scrutiny". The Herald. Glasgow. Retrieved 13 December 2010.
  5. ↑ "MSPs 'unable to recommend' Scotland Bill plan". BBC News Scotland. 15 December 2011. Retrieved 18 December 2011.
  6. ↑ S. MacNab, "Scotland Bill: Parties split as SNP threatens to block transfer of powers", The Scotsman, (16 December 2011)
  7. ↑ Jones, Peter (4 October 2011). "Before May, it was assumed that even if the SNP opposed them, the unionist parties would have voted them through the Scottish Parliament. Of course, thanks to the SNP winning a majority, they now no longer have the power to do that. Indeed, the SNP has the power to block the transfer of powers. Last week's meeting of the Scottish Parliament committee examining the Scotland Bill's provisions made it pretty clear that the SNP is preparing the ground to do exactly that". The Scotsman. Edinburgh. Retrieved 4 October 2011.
  8. ↑ Jones, Peter; Macleod, Angus (16 December 2011). "Scotland Bill stalls as SNP clashes with Westminster". The Times. London. Retrieved 16 December 2011.
  9. ↑ BBC News, "Holyrood to be given new income tax and borrowing powers". BBC News Online, (21 March 2012)
  10. ↑ BBC News, "MSPs endorse new Holyrood powers under Scotland Bill", BBC News Online, (18 April 2012)
  11. ↑ "Commons clears transfer of powers". The Herald. 28 January 2011. Retrieved 28 January 2011.
  12. ↑ "Scotland Bill: Parties split as SNP threatens to block transfer of powers".
  13. ↑ "MSPs endorse new Holyrood powers under Scotland Bill". BBC. 18 April 2012. Retrieved 20 April 2012.
  14. ↑ "MSPs approve Scotland Bill". The Herald. 19 April 2012. Retrieved 20 April 2012.
  15. ↑ "MSPs back Holyrood powers boost", Stornoway Gazette, (18 April 2012)
  16. ↑ The Law Society of Scotland, news statement

Further reading

  • Black, Andrew (30 November 2010). "Q&A: Scotland Bill". BBC News Online.
  • Gallagher, Jim (30 November 2010). "Why the Scotland Bill is good news for England". Daily Telegraph. Retrieved 28 January 2011.
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