The Accountability Gap – UK Constitutional Law Association

*Editors’ note – this post is part of a series on ‘Contemporary Challenges for Constitutional Accountability’. The other posts in the series are available here.*

On 24 October 2023 the Constitution, Europe, External Affairs and Culture (CEEAC) Committee of the Scottish Parliament published the second of two reports this session concerned with devolution in the post-EU era. How Devolution is Changing Post-EU built upon The Impact of Brexit on Devolution by making a number of recommendations relating to the important themes identified in that earlier report: the scope for post-EU regulatory divergence within the UK and between the UK and EU; the strain that EU withdrawal has placed on the Sewel Convention; and, the increasing number, broadening scope and changing nature of UK delegated law-making powers in devolved areas. In this post I want to focus on this final set of considerations: the number, scope and nature of UK delegated law-making powers in devolved areas and the accountability gap to which they give rise.

The pre-EU withdrawal experience

The Scotland Act 1998 established a hierarchy of parliaments. Section 28(7) expressly preserved the power of the UK Parliament to legislate for Scotland, legislative devolution notwithstanding. The exercise of that legal power is conditioned by a political rule, the (so-called) Sewel convention, now given statutory recognition in section 28(8) of the Scotland Act, that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament’. However, the Scotland Act did not establish an equivalent hierarchy of governments. Section 53(1) of the Scotland Act established that functions devolved to the Scottish Ministers are exercisable by the Scottish Ministers ‘instead of by a Minister of the Crown [emphasis added]’ whilst section 55(1), with limited exceptions, removed as ‘inappropriate’ any requirement that devolved executive functions be exercised in consultation with, or with the agreement of, UK Ministers. Because there was ‘no executive equivalent of the continuing (supreme) power of the Westminster Parliament to legislate for Scotland on all matters, whether reserved or devolved’ there is no generally applicable rule, legal or political, that the UK Ministers will not normally exercise executive functions in devolved areas without the consent of the Scottish Ministers.

In the pre-EU withdrawal era of devolution the general transfer of functions from UK to devolved ministers was subject only to limited exceptions. A key exception was the power held jointly by Scottish Ministers and UK Ministers to make secondary legislation that implemented obligations arising from EU membership. The committee noted that, pre-EU withdrawal, ‘UK Ministers regularly used that power, with the Scottish Government’s consent’ but that this power ‘was for implementing policy decisions that had been agreed at EU level rather than implementing the UK/Scottish Governments’ own policy’ [Brexit Impact [121]] and that, for EU obligations falling in the devolved sphere, ‘it [was] for the devolved administrations to consider [whether the obligation should be implemented] separately, or [whether they should] opt for GB or UK legislation’ [Brexit Impact [122]]. Where the Scottish Ministers opted to implement EU obligations separately they had a ‘responsibility to consult the relevant Whitehall departments … to ensure that any differences of approach produced consistency of effect and, where appropriate, of timing’ [Changing Devo [32]]. However, because in practice policy choices in devolved areas such as agriculture, fisheries and the environment were heavily constrained by EU law, because UK Ministers were similarly constrained in those areas and because of the volume and complexity of EU law, ‘Scottish Ministers regularly invited the UK Government to legislate on a [GB or] UK-wide basis’ [Changing Devo [34]]. Otherwise, ‘the UK Government did not generally have powers to make secondary legislation in devolved areas and it did not often do so’ [Brexit Impact [123]].

Where the Scottish Ministers did invite UK Ministers to legislate on a GB or UK-wide basis the traditional lines of accountability for the exercise of executive functions in devolved areas were blurred. The Scottish Parliament had no scrutiny role with regard to that legislation and it had no voice with regard to the decision to opt for GB or UK-wide legislation [Changing Devo [35]]. However, as the committee noted, this was mitigated by two factors. First, what was being implemented were legal obligations – not substantive policy choices – and so ‘it was less of an issue from a scrutiny perspective whether the domestic legislation that did so was enacted in Westminster or the Scottish Parliament’ [Changing Devo [37]]. Second, the Scottish Government gave account for the implementation of EU obligations in devolved areas by GB or UK-wide legislation in the form of regular reports to parliamentary committees [Changing Devo [37]]. For these reasons, the committee reported that the pre-EU withdrawal experience was a relatively positive one, albeit in a context that afforded very limited opportunities for either of the UK or Scottish Governments meaningfully to diverge from EU law [Changing Devo [38]].    

How devolution is changing post-EU

The committee has identified a ‘significant step change’ in the number, scope and nature of UK delegated law-making powers in devolved areas. Whereas previously there were only a limited number of such powers, the committee has said that ‘the extent of primary legislation enacted at Westminster which includes delegated powers exercisable within devolved legislative competence by UK Ministers’ is ‘one of the most striking aspects of how devolution is changing outside of the EU’ [Changing Devo [162]]. This trend began with UK legislation made to give effect to EU withdrawal that was subject to the legislative consent process during the fifth session of the Scottish Parliament and has continued into the current session. The committee notes sixteen UK Acts or Bills that have been subject to the legislative consent process during the sixth session that provide for UK Ministers to make law in devolved areas [Changing Devo [162]-[166] and Annexe B]. In addition, whereas previously the exercise of such powers was (for the most part) limited to the implementation of EU obligations, post-EU there have been two important changes.

First, whilst the majority of UK delegated law-making powers in devolved areas continue to relate to what formerly were EU policy areas, increasingly these powers are being taken in areas (such as criminal justice, health and the conduct of elections) that were not within EU competence [Changing Devo [167]]. Second, unlike the pre-EU withdrawal position, where the underlying policy choices had already been made at EU level and domestic delegated legislation simply gave effect to those policy choices, outside of the EU the UK and devolved ministers now have much greater freedom to make substantive policy choices, including on the extent of regulatory divergence both within the UK and between the UK and the EU [Changing Devo [170]].

In this context, the committee says, greater significance attaches to the scrutiny of the delegated legislation that gives effect to those policy choices. Consequently, it is more of an issue whether law-making powers in devolved areas are exercised by UK Ministers accountable to the UK Parliament or by Scottish Ministers accountable to the Scottish Parliament [Changing Devo [171]]. Finally, whereas in the pre-EU withdrawal era it was for the Scottish Ministers to decide whether to implement EU obligations in devolved areas through UK or devolved legislation, the nature of these new (policy-laden) UK delegated law-making powers has changed. In the absence of a Sewel-like convention applicable to secondary legislation the emphasis now is on the extent to which (if at all) the relevant UK primary legislation requires UK Ministers, in the exercise of their powers in devolved areas, to obtain or seek the consent of, or to consult with, devolved counterparts [Changing Devo [172]].

The approach taken to devolved consent has so far been ad hoc. There seems to be no guiding constitutional principle as to when it is appropriate for UK Ministers to take these powers nor as to the consent or consultation mechanisms (if any) that attach to their exercise. Sometimes UK Ministers are expressly prohibited from legislating in devolved areas. Sometimes UK Ministers must obtain the consent of devolved counterparts before exercising delegated law-making powers in devolved areas. Sometimes they must seek (but not necessarily obtain) the consent of devolved counterparts. Sometimes the requirement is only to consult with Scottish Ministers. At other times there is no statutory consent or consultation requirement at all [Changing Devo [173]-[174]]. In some cases, the statutory silence has been filled with a political commitment to seek devolved consent but sometimes not. However, even where a political commitment has been made ‘normally’ to use those powers ‘with the agreement of the relevant devolved government’ (as was the case in relation to powers created by the European Union (Withdrawal) Act 2018 (EUWA) [Brexit Impact [128]]) the promise itself undermines the principle that devolution created a hierarchy of parliaments but not a hierarchy of governments.      

The accountability gap

The post-EU ‘step change’ in the number, scope and nature of UK delegated law-making powers in devolved areas creates a significant accountability gap. UK Ministers are directly accountable to the UK Parliament, and not to the Scottish Parliament, for the exercise of (policy-laden) delegated law-making powers in devolved areas. This is problematic where those powers are exercised without the consent of Scottish Ministers, and doubly so where the Scottish Parliament has withheld legislative consent to the enabling UK legislation itself or where the Scottish Government has recommended that consent be withheld in the case of Bills yet to be enacted (as has been the case for five of the Acts and Bills identified in the committee’s report [Changing Devo Annexe B]).

Where these powers are exercised it is difficult for the Scottish Parliament to reassert its scrutiny function, for at least four reasons. First, in the Continuity Bill Reference the Supreme Court struck down provisions in the Scottish Parliament’s Bill that would have made the exercise of such powers created by the EUWA conditional upon UK Ministers first obtaining the consent of Scottish Ministers. By conditioning the legal effect of subordinate legislation enabled by an Act of the UK Parliament, the court said, this provision would amount to an unlawful modification of section 28(7) and the continuing ‘power of the Parliament of the United Kingdom to make laws for Scotland’ [Continuity Bill Reference [50]).

Second, whilst the Scottish Government and the Scottish Parliament have agreed a statutory instrument protocol for the scrutiny of decisions made by Scottish Ministers to consent to the exercise of UK powers in devolved areas (SIP2), the effect of the protocol is highly contingent upon the strength of the consent mechanism attached by the enabling UK legislation [Changing Devo 183]]. Where there is a statutory requirement on UK Ministers to obtain the consent of the Scottish Ministers the protocol has bite: the Scottish Government would not consent where the Scottish Parliament expressed its disapproval. Where the requirement is only to seek the consent of the Scottish Ministers, or where there is only a political commitment but no statutory requirement to seek consent, that bite may be weaker in light of the UK Ministers’ legal power to override (or, in the case of a political commitment, to side-step) devolved consent. Where there is neither a statutory requirement nor a political commitment to seek devolved consent the protocol is redundant: there is no consent decision by the Scottish Ministers against which the scrutiny function of the Scottish Parliament can bite [Brexit Impact [169]].

Third, SIP2 applies only to UK powers exercised in devolved areas that previously were within EU competence. The protocol is therefore redundant in relation to the increasing number of UK powers in devolved areas that were not previously within EU competence, leaving no meaningful scrutiny function for the Scottish Parliament [Changing Devo [184]].

Fourth, it is not only the exercise of these powers by UK Ministers without the consent of devolved counterparts that creates an accountability gap. There can be such a thing as too much inter-governmental co-operation. As the committee notes, whilst SIP2 recognises that ‘Scottish Ministers will normally wish to give such consent where the policy objectives of the UK and Scottish Ministers are aligned and there are no good reasons for having separate Scottish subordinate legislation’ there might be ‘good reasons’ from a scrutiny perspective for distinct Scottish legislation. The legislative and scrutiny functions of the Scottish Parliament in devolved areas are constitutional goods in and of themselves. The risk of too ready a pragmatic recourse to UK powers with the consent of Scottish Ministers is that the role of the Scottish Parliament in devolved areas is hollowed out from within [Changing Devo [187]].

Conclusion

To bridge this accountability gap, the CEEAC Committee has recommended a new inter-governmental agreement between the UK and Scottish Governments that sets out: a list of UK delegated law-making powers in devolved areas, updated as appropriate; the criteria for their use; the reasoning for the level of devolved consent or consultation attached to each; and, the process of engagement about their exercise as between UK and devolved governments at Ministerial and official levels. Any such agreement, the committee goes on to say, should recognise the ‘fundamental constitutional principle[s]’ that ‘devolved Ministers are accountable to their respective legislatures for the use of powers within devolved competence’ and that ‘the Scottish Parliament should have the opportunity to effectively scrutinise the exercise of all [emphasis added] legislative powers within devolved competence’ [Changing Devo [196] and [207]]. This agreement would be supplementary to a new Memorandum of Understanding specifically addressed to ‘how devolution now works outside of the EU’ that is ‘based on a clear constitutional design’ [Changing Devo [82]].

Of course, and as Rick Rawlings warned in the early years of devolution, ‘concordatry’ alone is unlikely to be sufficient even if it is a necessary first step. On the one hand, the breakdown of soft-law techniques during the EU withdrawal process has contributed significantly to the current predicament. On the other hand, inter-governmental agreement must be matched by new methods of intra- and inter-parliamentary working and underpinned by a meaningful commitment by UK and devolved governments to transparency. UK legislation in devolved areas might be ‘sensible and proper’ in ‘exceptional and limited circumstances’, Donald Dewar once said, but legislative devolution in Scotland proceeds on the fundamental constitutional principle of devolved autonomy: that ‘day in day out, it is [in the Scottish Parliament] that the law of the land will be laid down and set out’. That is what is at stake where we normalise UK delegated law-making powers in devolved areas, where devolved consent for the exercise of those powers is determined on an ad hoc rather than on a consistent, reasoned and principled basis, and where the scrutiny function of the Scottish Parliament is contingent upon the good will of the UK Parliament or on the strength of the Scottish Government to resist pragmatic recourse to UK rather than concurrent devolved delegated law-making powers.

Chris acts as an Adviser to the CEEAC Committee. This blog post is written in a personal capacity.

Chris McCorkindale, Reader in Public Law, Strathclyde Law School 

(Suggested citation: C. McCorkindale, ‘UK Delegated Law-Making Powers in Devolved Areas: The Accountability Gap’, U.K. Const. L. Blog (7th December 2023) (available at https://ukconstitutionallaw.org/))