The Scotland Act 2016: New challenges for parliamentary scrutiny

By Stephen Herbert

The process of parliamentary scrutiny of the recommendations of the Smith Commission and the subsequent Scotland Bill has provided insights into the challenges that implementing the now Scotland Act 2016 present. The Scotland Act 2016 provides for the devolution of a range of new competencies to Holyrood. However, the passage of the Act is significant not only for the powers it confers upon the Scottish Parliament and Government but also the shift in the structure of Scottish devolution that will be a consequence of the Act’s provisions. The 2016 Act will result in a shift from a system of largely separate and clearly demarcated boundaries in terms of the distribution of powers between Holyrood and Westminster to an increasingly shared distribution of powers in a range of policy areas, notably with regard to taxation and social security powers. This will result in a greater degree of inter-governmental working than has been the case to date and will also present challenges to legislatures in examining these relationships. The issues raised, in this regard, by this shift in the structure of devolution are considered here.

Lord Smith himself had previously emphasised the importance of IGR when in the foreword to the Smith Commission report he commented:

These increased powers demand improvements in parliamentary scrutiny and strengthened collaboration between the Scottish and UK Governments.

Parliamentary committees at both Holyrood and Westminster took up the challenge and undertook work on the operation of inter-governmental relations in the UK to date and how these relations could be better scrutinised in future. These committees tended to reach broadly similar conclusions. Research commissioned by the Scottish Parliament’s Devolution (Further Powers) Committee concluded:

In most multi-level and federal countries, intergovernmental relations are more formalised than in the UK, with more inter-governmental bodies and formal agreements, thought the extent to which these forums and procedures are used varies over time.

In every country, inter-governmental relations are dominated by executives, with relatively limited opportunities for parliaments and parliamentarians to engage in legislative oversight of processes, negotiations and agreements.

In spite of this general constraint, in almost every country examined here, the role of parliaments in scrutinising IGR is greater than the role the UK’s parliament’s currently enjoy in the scrutiny of UK IGR.

For the House of Lords Constitution Committee:

The transparency and parliamentary scrutiny of inter-governmental relations requires a great deal of improvement. The current reporting of JMC meetings is bland and un-illuminating; much more information could be made public in advance of and after meetings. Likewise there is a need for Government departments to detail more thoroughly their interactions with the devolved administrations. This would provide the information base necessary for effective parliamentary scrutiny.

Indeed even the Scottish and UK governments appeared to accept that parliamentary scrutiny of IGR had been insubstantial to date. Phillip Rycroft, Head of the UK Government Cabinet Office Governance Group, commented that ‘it is probably true to say that parliamentary scrutiny across the piece has been relatively light over the past few years’. That could be de-coded as civil service speak for parliamentary scrutiny having been non-existent.

The aforementioned Devolution (Further Powers) Committee, which contained representatives of all five political parties present in the fourth session of the Scottish Parliament, made a number of unanimous recommendations with regard to how scrutiny of IGR could be improved. In doing so, the committee recognised that this would require action not just from executives across the UK but also from legislatures in terms of parliamentary structures and processes as well as improved dialogue and cooperation between legislatures across the UK.

The issue of parliamentary scrutiny of IGR inevitably raises a tension between the governmental need for space to negotiate in private and the parliamentary demand for transparency and accountability. The negotiations between the Scottish and UK governments on the fiscal framework exemplified this tension as the governmental agreement that negotiations should proceed without any ‘running commentary’ became harder to sustain as the timescale for parliamentary scrutiny of the Scotland Bill began to diminish.

The Devolution (Further Powers) Committee recommended that a Written Agreement on IGR should be agreed with the Scottish government with regard to the provision of information in this area. Specifically, the committee recommended that:

a new Written Agreement on Parliamentary Oversight of IGR between the Scottish Government and the Scottish Parliament with regard to the provision of information and how the views of the Scottish Parliament will be incorporated with regard to IGR agreements is an appropriate approach to adopt in order to aid transparency in this area. Other legislatures in the UK may wish to consider similar arrangements that best suit their procedures.

The Committee considers that the information provided by governments must enable parliamentary scrutiny of formal, inter-ministerial meetings before and after such meetings. Such information must include, as a minimum, a ‘forward look’ calendar of IGR meetings and the agendas for these meetings. Subsequently, detailed minutes of meetings held and the text of any agreements reached must also be made available to legislatures in a timely manner.

An agreement on this issue was subsequently agreed between the Scottish Parliament and Government prior to the Scottish Parliament voting in favour of legislative consent for the Scotland Bill. This is understood to be the first agreement of its kind in the UK. Such an agreement does not represent a solution to the issue of parliamentary scrutiny of IGR. That will depend on political will within legislatures to scrutinise these issues and a willingness on the part of governments across the UK to recognise that legislatures have a legitimate right to information on agreements reached within the UK’s system of IGR. Therefore, successful parliamentary scrutiny of IGR will require cooperation between legislative and governmental actors.

The track record of UK legislatures in scrutinising these issues has been extremely poor historically. Parliamentary scrutiny of the Scotland Bill, at both Holyrood and Westminster, provided evidence not only that improvement is possible but also that the political will and interest to scrutinise these issues does exist. Whether that improvement takes place remains to be seen but the passage of the Scotland Act 2016 will raise the prominence of IGR as a constitutional issue and present challenges to the both the Scottish and UK Parliament in terms of their ability to scrutinise the actions of governments in this sphere. The agreement between the Scottish Parliament and Government suggests that the will is there to make that change happen.

Dr Stephen Herbert is Senior Assistant Clerk for the Devolution (Further Powers) Committee in the Scottish Parliament. He can be contacted on stephen[dot]herbert[at]scottish[dot]parliament[dot]uk.

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