Chamber and committees

Given the constitutional significance of the UK Government’s actions, the Lord Advocate, representing the Scottish Government, intervened in Joanna Cherry QC MP and Others against the Advocate General for Scotland in the Inner House of the Court of Session and Gina Miller v the Prime Minister in the Divisional Court of the High Court in England and Wales before ultimately intervening in the subsequent appeals to the UK Supreme Court.

The Lord Advocate argued that the UK Government’s prorogation of the UK Parliament, at such a critical point in advance of 31 October 2019, had the effect of preventing, for five weeks, scrutiny of the UK Government by the UK Parliament and represented an abuse of executive power.

The Scottish Government therefore welcomed the Supreme Court’s ruling in September 2019 that the decision of the Prime Minister to advise Her Majesty the Queen to prorogue the UK Parliament was unlawful, and that the Order in Council which followed was similarly unlawful and had no effect.

Details of the expenditure incurred in relation to these cases are set out in the following table.

The Lord Advocate's expenses are not included, as Ministerial costs are routinely published by the Scottish Government. The cost of internal legal advice is not included as that is provided by Government lawyers who are civil servants as part of their normal duties supporting Scottish Government Ministers; and in line with usual practice, details of individual tasks carried out by civil servants, including the number of hours spent on them are not recorded, because there is no business need to do this.

The Scottish Government encourages and supports participation in local democracy and values the role of Community Councils who undertake a wide range of activities for the benefit of their community. Community councillors were among the thousands of people who got involved in Democracy Matters conversations about the future of local democracy in Scotland. We look forward to their continued engagement over the course of this year as we develop new decision-making arrangements which can further empower Scotland’s diverse communities.

Details of the local government finance settlement for 2020-21 will be confirmed as part of the Scottish Budget on 6 February. In coming to my decision to announce the Scottish Budget before the outcome of the UK Budget is known I listened carefully to the representations COSLA made on behalf of local government of the damaging impact any further delay would have on the delivery of vital public services and also the practical challenges this would pose around the setting and collection of council tax.

COSLA have welcomed the move to bring forward the Scottish Budget and also confirmed that given the exceptional circumstances around timing and that the UK budget is for one year only they are not seeking multiyear indicative allocations at this time. COSLA have, however, requested as early confirmation as possible of any parameters that will apply to Council tax levels.

Set against the exceptional circumstances of the delayed Budget and restricted timetable we are faced with this year, and to help councils with their budget preparations, I can confirm that the local government settlement will include confirmation that local authorities will again have the flexibility to increase their council tax levels by up to 3 per cent in real terms (equivalent to 4.84 per cent cash) for 2020-21.

In accordance with the Scotland Act 1998, as amended, the UK Parliament does not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. This covers legislation for devolved purposes (that is matters within the legislative competence of the Parliament), and changes to the competence of the Parliament or the Scottish Ministers (in line with the statutory procedural safeguards to competence under the Scotland Act).

In accordance with Chapter 9B of Standing Orders, the formal consent of the Scottish Parliament is required in relation to all proposals for Westminster primary legislation with regard to devolved matters, including alterations to devolved competence.

The principle of legislative consent, in all its elements, is crucial to the devolution settlement, acknowledging the constitutional position of the Scottish Parliament and the democratic mandate conferred on it by the people of Scotland. In the view of the Scottish Government, legislative consent will remain an essential part of the constitution of the UK for as long as the Westminster Parliament retains its current powers and functions in relation to Scotland.

In the normal course of business, legislation for devolved purposes should be scrutinised and determined in the Scottish Parliament. There may however be situations in which it is helpful and appropriate for legislation for devolved purposes to be taken forward at Westminster.

Within the legislative programme announced today by the UK Government, we have identified possible options to legislate for the benefit of Scotland on matters that are within the legislative competence of the Scottish Parliament, or which alter legislative or executive competence. The Scottish Government will consider the content of all Bills before deciding its recommendation to the Parliament on legislative consent. It will then be for the Scottish Parliament to determine whether to give or withhold consent.

One particular consideration when determining if consent should be recommended to the Parliament will be in relation to provisions related to withdrawal from the European Union, for which there is no mandate in Scotland.

We expect the UK Government and Parliament to respect the Sewel convention and decisions taken by this Parliament. While we regret the UK Government’s decision to withdraw Scotland, and the UK, from the EU, we remain committed to working with the UK Government to develop and improve legislation related to EU withdrawal, and to ensure that such legislation respects the devolution settlement.

We will consider each UK Bill containing EU exit-related provision on its own merits, and while assurances on respecting the Sewel convention are still awaited from the UK Government, we will continue to consider whether exceptional circumstances exist when taking a view on recommending consent, as we have previously done.

However, regardless of any decision Scottish Ministers make regarding whether or not to support consent, it remains important that the Scottish Parliament can scrutinise any Brexit-related provision. The Scottish Government will continue to lodge legislative consent memorandums setting out its views on the substance of any such provision. It remains open to the UK Government to commit to respecting the Scottish Parliament’s views as regards EU exit-related provision.

The UK Government Bills which appear to give rise to the requirement for the legislative consent of the Scottish Parliament are:

• Agriculture Bill
• Air Traffic Management and Unmanned Aircraft Bill
• Birmingham Commonwealth Games Bill
• Broadband legislation
• Building Safety Bill
• Counter Terrorism (Sentencing and Release) Bill
• Domestic Abuse Bill
• Environment Bill
• European Union (Withdrawal Agreement) Bill
• Fisheries Bill
• Immigration and Social Co-ordination (EU Withdrawal) Bill
• Private International Law (Implementation of Agreements) Bill
• Sentencing (Pre-consolidation Amendments) Bill
• Trade Bill

It is possible that further opportunities to legislate for Scotland by means of Legislative Consent Motion may occur in connection with other UK Bills, including Private Members’ Bills. Any additional proposals of this kind, together with any relevant amendments to the UK Government Bills listed above, will be drawn to the attention of the Parliament as they arise, in line with the requirements of Standing Orders.