Scottish Parliament – Powers

Areas where the Scottish Parliament was first given powers

The 1998 Scotland Act devolved to the Scottish parliament control over policy, and the implementation of UK statute, in areas that were not specified as ‘reserved’ for Westminster.

These are the areas in which the parliament was initially given powers inasmuch as they extend to Scotland or are wholly within Scotland:

Education, training, lifelong learning
Local government including electoral provisions
Social work
Economic development
Criminal and civil law
Criminal justice, prosecution and rehabilitation
Police and fire services
Environment and natural heritage
Built heritage
Agriculture and food
Statistics, public registers and records
Charities law

Some statutory powers were shared, being exercised by Scottish ministers for matters wholly within Scotland and by the UK government for cross-border, UK-wide matters. Additional existing powers could be accorded to Scottish ministers by order, while new powers must be created by UK act before being devolved by order.

Occasionally, it was considered to make sense for the UK government to legislate on devolved issues – for example when limited provision in a UK bill would affect Scotland.

In this case the Scottish parliament is asked by Scottish ministers to approve a Sewel motion (named after Lord Sewel). This is the parliament’s means of indicating approval for the clauses in a UK bill regarding devolved functions.

Extradition is a good example of this. Extradition is a reserved area, which means that the Scottish parliament cannot legislate on it. But Scottish ministers exercise powers under UK extradition legislation in determining whether an individual is to be extradited. These have been given to them by order.

When the UK government wanted to change the law on extradition in 2003, it introduced a bill at Westminster. The Scottish parliament debated those clauses that would affect Scottish ministers and approved a Sewel motion endorsing the bill. If the UK government wanted to devolve the right to legislate on extradition to Scotland, it would have to pass primary legislation to that effect.

Additional powers that have since been provided to the Scottish Parliament

Since the original 1998 Scotland Act, further powers have been provided to the Scottish Parliament.

Under the 2012 Scotland Act, the following powers were transferred to the Scottish Parliament:

– Air weapons (power to make law relating to the use and regulation of most air weapons in Scotland)
– Borrowing powers up to £2.2 billion (Capital) and £500m (Revenue)
– Drink driving alcohol limits
– Scottish representation on Boards of the BBC and Crown Estate
– Scottish Rate of Income tax (SRIT) From 1 April 2016. The UK Government will deduct 10p in the £ from basic, higher and additional rates of income tax and the Scottish Parliament will have the power to levy a Scottish rate across these three bands.
– Stamp Duty Land Tax (SDLT) from 1 April 2015

Under the 2015-2016 Scotland Act, further powers were then transferred:

– Air Passenger Duty and Aggregates Levy
– Energy efficiency and Fuel poverty schemes
– Consumer advocacy and advice
– Crown Estate (Management of, and revenues from, its economic assets in Scotland)
– Scottish Parliament elections and the local government franchise. Includes regulation of campaign spending and controlled expenditure on Scottish Parliament elections.
– Employment programmes (power to create employment schemes for those at risk of long-term unemployment and to help disabled people into work)
– Additional health power (abortion)
– Income tax (including setting rates and thresholds)
– Proposal to introduce specific equality requirements for public bodies
– Partial assignment of VAT revenues
– Gaming machine licensing powers (The powers apply specifically to controlling the number of Fixed-Odds Betting Terminals)
– Onshore oil and gas licensing
– Transport, including road signs, speed limits and the functions of the British Transport Police
Reserved tribunals (except Special Immigration Appeals Commission and Proscribed Organisations Appeals Commission)
– Welfare including control over certain benefits outside of Universal Credit (Universal Credit) and the power to vary the housing element of UC and to vary UC payment arrangements

Areas where the Scottish Parliament currently lacks power

These are the main reserved areas in which the parliament does not currently have powers:

– Constitution (succession, the union, treason)
– Foreign affairs and human rights
– Civil service
– Defence and armed forces
– Currency
– Some aspects of fiscal, economic and monetary policy
– Immigration and nationality
– Extradition
– Import and export controls
– Sea fishing outside the Scottish zone except in relation to Scottish registered vessels
– Some aspects of Social Security (including certain aspects of Universal credit, occupational and personal pensions)
– Public lending right

Funding of the Scottish government

The work of the Scottish executive and its agencies is funded by the grants formerly provided to the Secretary of State for Scotland. These are paid into the Scottish consolidated fund.

Any increase in the specific rates of tax in Scotland would lead to the Inland Revenue making additional payments into this fund.  Alternatively, the Revenue would make a charge to the fund if the Scottish tax rates were reduced.

The ‘Barnett formula’ is used to share out increases in UK public expenditure between the constituent parts of the UK (not Northern Ireland). This complex formula was first used in the late 1970s by then chief secretary to the Treasury Joel (now Lord) Barnett.

Put simply, certain increases in UK-wide expenditure are divided up according to population, which means that historic additional per capita spending in Scotland tends to be preserved.  This current advantage has become one issue of discussion in the debate around Scottish independence.

The Secretary of State for Scotland

Prior to the Devolution process in the late 1990s, the Secretary of State for Scotland was responsible for Scottish government.   This post was filled by a Member of Parliament at Westminster, who was in charge of the Government Department, the Scottish Office.

There is still a Secretary of State for Scotland in London, who is a member of the UK cabinet.  They are appointed by the Prime Minister, and are normally drawn from the ranks of the governing party’s Scottish Members of Parliament at Westminster.  They are assisted by a junior Scottish Office Minister, drawn on similar basis.

The Secretary of State for Scotland exercises the following functions:

Representation of Scottish interests in reserved areas
Ensuring the smooth-running and success of the devolution settlement and intervening as required by the Scotland Act
Transfer of funds into the Scottish Consolidated Fund
Accountability for Scottish issues to Westminster; normally through a monthly oral question session

The Scotland Act established a new UK law officer – the Advocate General for Scotland – to advise the UK government on all matters pertaining to Scottish law and on the referral of Scottish bills to the judicial committee of the privy council where questions on devolved competence arise.