Missed opportunities? Stagnant statutory powers in Scottish legislation

Jonathan Deans examines the extent of the Scottish Government’s unused powers and explains their existence

When an act of legislation passes parliament, whether at Westminster or Holyrood, it will contain a commencement provision which states when the act comes into force as law. Usually, instead of setting a date, the legislation will state something like ‘the provisions of this Act come into force on such day as the Secretary of State [or Scottish Ministers] may appoint’. This creates a situation where, even though parliament has enacted the legislation, the government has the power to significantly delay it becoming law by deferring the commencement date.

In a House of Lords (now Supreme Court of the United Kingdom) case of 1995, R v Secretary of State for the Home Department, ex parte Fire Brigades Union, it was declared that the government cannot refuse to exercise this power by stating that it will never bring a statutory provision into force. However, the government still retains significant discretion on when to commence legislation.

Much has been made of the delay regarding the powers created by the Social Security (Scotland) Act 2018 for the Scottish Government to create a devolved benefits system. Originally planned for 2021, use of these powers has now been delayed until at least 2024. Similarly, the Scotland Act 2016 conferred new tax powers to the Scottish Government. The Scottish Parliament then quickly passed the Air Departure Tax (Scotland) Act 2017, to replace Air Passenger Tax in Scotland with a new devolved tax. However, bringing this tax into force has now been delayed past 2020. Changes that were envisaged to income tax bands to create a fairer and more progressive tax code for Scotland have also failed to materialise.

It could be argued that, due to the importance of issues such as benefits and taxes, the Scottish Government could be given the benefit of the doubt. It may be better to proceed with caution rather than hastily implementing a poor system. However, other, presumably less controversial, statutory powers have stagnated as well.

The Housing (Scotland) Act 1987 created a duty for local authorities in Scotland to investigate whether a person applying for emergency accommodation had become homeless ‘intentionally’, mirroring the position in England and Wales. Examples of conduct which can be considered to result in ‘intentional homelessness’ include failure to pay rent, defaulting on a mortgage, and loss of accommodation due to spending time in custody. The result of a finding of ‘intentional homelessness’ is that the local authority does not have a legal obligation to secure that person accommodation. Section 4 of the Homelessness etc. (Scotland) Act 2003 changed this duty to investigate, making it discretionary instead of mandatory. For over 16 years, this change has not been brought into effect. It is on the statute books but legally it is a non-entity. The result of this delay is that for over 16 years, homeless people applying for accommodation have faced an intrusive barrier to receiving support. This barrier specifically creates difficulties for people with mental health issues or who were made homeless due to an abrupt change in financial circumstances.

Kevin Stewart, Housing and Planning Minister for Scotland, has declared that this will now come into effect in November 2019. It is difficult to envisage who, in an administration controlled by a purportedly centre-left party, was opposing this and why they were opposing it.

The same problem is apparent on less politically charged topics. The Control of Dogs (Scotland) Act 2010 gave the Scottish Government the power to create a ‘Scottish dog control database’ for the retention of data on all dog control notices throughout Scotland. For a long time, there was apparently no movement towards this. Now, the Scottish Government has announced that a consultation will be held in January 2020 on whether to should establish such a database.

A similar situation has arisen with Part 5 of the Land Reform (Scotland) 2016, which laid down a process for communities to seek to acquire rights to buy land. On 26 June 2019, the Scottish Government announced a consultation on regulations to bring Part 5 into force. This has created the absurd situation where the Government is consulting on regulations to bring into force statutory provisions which it passed three years previously. Ordinarily, a government would consult on plans it envisages legislating on, not on whether to bring into force existing legislation. If the Scottish Government did not intend to use these land reform or dog control powers without carrying out consultations first, then it arguably should not have conferred them until after holding the consultations. Photo

The Scottish Government’s Programme for Government for 2018-2019 includes many ambitious and laudable ideas such as a Scottish National Investment Bank and a bill to extend the electoral franchise to all citizens who are legally resident in Scotland. It is intended for the Scottish National Investment Bank to be operational by 2020. However, it was also intended for one million acres of Scottish Land to be community owned by 2020. Currently, only around 600,000 acres are in community ownership as we near the end of 2019. The delay in implementing key community right to buy powers has likely contributed to this shortfall.

It may appear to some that the Scottish Government’s pattern is to announce new legislative powers, celebrate the new powers it has awarded itself, and then fail to use them. Some critics on the left have argued that the Scottish Government ‘talks left and walks right’ and that the reality is that the Scottish Government appeals to left-wing and working class voters with its rhetoric but ultimately is still beholden to corporate interests and powerful Scottish landowners. This is a predictable left-wing criticism for any government and may be true to an extent. There are, however, two more generous interpretations.

The Scottish National Party is often described as centre-left in ideology but it is more accurately described as a ‘big tent’ party, which seeks to attract voters from across the majority of the political spectrum. The party’s rhetoric may be driven leftwards to appeal to working class and young adult supporters. A charitable comparison would be to the Indian National Congress, which united Indians of varying class, caste, religion, and ideology, in its opposition to the British Empire’s rule of India. It has been noted that the backgrounds of SNP MPs range from investment bankers and oil executives to trade unionists and socialists. The issue may not be that the Scottish Government is embracing populism by announcing policies that it has no intention of implementing. The issue is that the elected members of the Scottish National Party all agree that they want Scotland to have these new powers, but once these powers are granted, they disagree on how they should be used, leading to a political quagmire. This would explain the delay in implementing fairer tax bands and a devolved welfare system. This would also explain why consultations need to be held in order to implement statutory provisions passed years earlier.

Another factor is the Scottish National’s Party lack of a serious opposition in Holyrood. The SNP has been in office in the Scottish Government for 12 years so far and currently holds twice as many seats in the Scottish Parliament as the next biggest party, the Scottish Conservative Party. It seems likely that the Scottish National Party will be able to retain, at minimum, a minority government for the foreseeable future. Furthermore, there are two factors which make it very difficult for other parties to ‘convert’ supporters of the Scottish National Party. Many of their supporters are intensely passionate about Scottish independence and would not vote or support any party which does not also hold that aim, regardless of how they feel about the particular policies of that party. Parallels can be drawn with the Brexit Party and other groups of ‘single issue voters’ such as gun rights activists in the United States of America. Secondly, the unique constitutional arrangements that have created Scotland’s devolved legislature mean that the Scottish Government is mostly shielded from usual levels of discontent and criticism of the status quo. In most countries, general unhappiness or a poor economy lead to the government being voted out in favour of their main competitor, with the democratic process holding the government to account for its actions in office. In Scotland, the Scottish Government can shift much antimony onto the government in Westminster, by claiming that their powers to address the pressing issues of the time are not sufficient. This also has the added effect of further strengthening their case for Scottish independence.

This lack of an opposition means that they do not have to fight hard for votes to ensure re-election, which can lead to significant levels of complacency. When the government is complacent, there is much less pressure for it to enact positive change or diligently conduct the affairs of state. This would explain the sixteen year delay in ending mandatory inquiries into intentional homelessness and the current nine year delay in setting up a Scottish dog control database.

Moving forward, the Scottish Government should commit to laying out clear plans in advance for how they intend to use the powers that they are pushing for, along with timescales for implementation. The introduction of a ‘sunset clause’ in the Planning (Scotland) Act 2019, providing that the power to create regulations expires if no regulations have been made within seven years, also provides a way for the Scottish legislature to force the hand of the Scottish executive. It is to be hoped that 2026 does not bring embarrassment to a Scottish Government that has failed to create these regulations.

Jonathan Deans is a trainee solicitor, community councillor, and a member of the Scottish Labour Party. He lives in Glasgow. He has studied Public Law and Public Administration at undergraduate and postgraduate levels and has previously had articles published on abortion rights, hospital smoking bans, and the use of children as covert intelligence sources.