The Report of the Smith Commission for further devolution of powers to the Scottish Parliament was published on Thursday. As most readers will be aware, the Commission was set up after the Scottish independence referendum to make recommendations on greater financial, welfare and taxation powers for Scotland; and the Heads of Agreement were drawn up by nominees to the Commission from all five political parties at Holyrood. There are several issues in the report that may impinge on “law & religion”, some more directly than others.
So far as the overall relationship between Westminster and Holyrood is concerned:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions. The Sewel Convention [ie the convention requiring the Scottish Parliament’s consent to Westminster legislating on devolved matters] will be put on a statutory footing” [paras 21 & 22].
At the moment, s 28(7) Scotland Act 1998 still provides that “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”. Presumably the intention is that Westminster would only override Holyrood in extremis.
“The parties believe that the current inter-governmental machinery between the Scottish and UK Governments, including the Joint Ministerial Committee structures, must be reformed as a matter of urgency and scaled up significantly to reflect the scope of the agreement arrived at by the parties. The views of the other devolved administrations will need to be taken fully into account in the design of the quadrilateral elements of that revised machinery” [para 28].
The report goes on to suggest the development of formal processes for Holyrood and Westminster to collaborate more regularly in areas of joint interest and reformed inter-governmental arrangements, including a new and overarching Memorandum of Understanding between the UK Government and the devolved administrations underpinned by stronger and more transparent parliamentary scrutiny. Evidently the Commission believes that if Scotland is going to have a new Memorandum of Understanding, Northern Ireland and Wales will expect similar treatment.
Turning to issues of more immediate interest:
“The Equality Act 2010 will remain reserved. The powers of the Scottish Parliament will include, but not be limited to, the introduction of gender quotas in respect of public bodies in Scotland. The Scottish Parliament can legislate in relation to socio-economic rights in devolved areas” [para 60].
In terms of discrimination on grounds of religion this is a very important reservation: evidently the Commission is not prepared to see any divergence in the equality laws of the two jurisdictions. (The wider issue of whether or not the law should be reformed is another matter entirely, and not one within the remit of the Commission.)
To no-one’s surprise, the Commission reaffirms the proposal to give the Scottish Parliament power to set the rates of Income Tax on the non-savings and non-dividend income of Scottish taxpayers. The likely implications of any changes for charities (which, of course, include religious charities) are not yet clear; and it remains to be seen whether the Gift Aid system will continue to operate on a UK-wide basis if tax rates in Scotland diverge, or whether there will be a dual system. As regards VAT, the revenue raised in Scotland by the first 10 per cent of standard rate VAT will be assigned to the Scottish Government’s budget but all other aspects of VAT will remain reserved – which presumably means that the (very limited) VAT reliefs currently enjoyed by charities will remain untouched.
It is perhaps in the area of health and social affairs that the proposals are potentially the most radical:
“The parties are strongly of the view to recommend the devolution of abortion and regard it as an anomalous health reservation. They agree that further serious consideration should be given to its devolution and a process should be established immediately to consider the matter further” [para 61]
“The devolution of xenotransplantation; embryology, surrogacy and genetics; medicines, medical supplies and poisons; and welfare foods … should be the subject of further discussions between the UK and Scottish Governments. Those discussions are without prejudice to whether or not devolution takes place and in what form” .
Presumably one factor in any further consideration of the devolution of abortion legislation will be the UK Supreme Court’s decision in Greater Glasgow Health Board v Doogan & Anor (Scotland) – the case of the two Glasgow midwives – on which judgment is currently awaited. But whatever the UKSC decides in Doogan, our suspicion is that if powers over issues such as abortion, embryology and surrogacy were devolved, it would lead over time to some degree of divergence in the law north and south of the Border.
There is a very good discussion of the wider aspects of the Smith Commission’s proposals on the UK Constitutional Law Association blog: see Mark Elliott: ‘A “Permanent” Scottish Parliament and the Sovereignty of the UK Parliament: Four Perspectives‘.