| Act of Parliament | |
 | |
| Long title | An Act to amend the Scotland Act 1998 and make provision about the functions of the Scottish Ministers; and for connected purposes. |
|---|---|
| Citation | 2012 c. 11 |
| Introduced by | Michael Moore |
| Dates | |
| Royal assent | 1 May 2012 |
| Commencement | United Kingdom |
| Other legislation | |
| Amends | Scotland Act 1998 |
| Amended by | Scotland Act 2016 |
Status: Amended | |
| Text of statute as originally enacted | |
| Text of the Scotland Act 2012 as in force today (including any amendments) within the United Kingdom, fromlegislation.gov.uk. | |
TheScotland Act 2012 (c. 11) is anact of theParliament of the United Kingdom. It sets out amendments to theScotland Act 1998, with the aim ofdevolving further powers toScotland in accordance with the recommendations of the Calman Commission.[1] It received royal assent in 2012.
The act gave extra powers to the Scottish Parliament,[2] most notably:
The proposed legislation was based on the final report of theCalman Commission, which was established by an opposition Labour Partymotion in theScottish Parliament in December 2007, against the wishes of theScottish National Partyminority government.
ProfessorJim Gallagher, the civil servant who drafted the Bill, was appointed to advise theScotland Bill Committee of the Scottish Parliament, convened byWendy Alexander, whose parliamentary motion started the whole Calman process.[4]
The bill was presented to theHouse of Commons by theSecretary of State for Scotland,Michael Moore, onSt Andrew's Day (30 November), 2010, and received an unopposed second reading on 27 January 2012.
TheUK government stated that it would not pass the bill unless it had obtained a legislative consent motion from theScottish Parliament,[5] although the Parliament of the United Kingdom could have passed the bill in any case.[6] The governingScottish National Party indicated that it planned to block the bill.[7][8] However, after a deal was reached between the two governments on 21 March 2012,[9] the Scottish Parliament unanimously passed a legislative consent motion in respect of the bill on 18 April 2012.[10]
The Secretary of State for Scotland, Michael Moore, described the legislation as the largest transfer of fiscal powers from central government since thecreation of the United Kingdom.[11]
Although the Scottish National Party supported some parts of the bill as introduced, it opposed others. In particular, it considered that the income tax proposals were flawed.[12] However, the SNP agreed to support the Bill, after the proposals to return certain powers were dropped,[13] and agreement was reached that the details of the income tax changes would be subject to approval by MSPs.[14] After the Bill received legislative consent from the Scottish Parliament, theCabinet Secretary for Parliamentary Business and Government Strategy,Bruce Crawford,MSP argued that, although the Bill would not harm Scottish interests, it represented a missed opportunity and had been overtaken by events, in particular thereturn of an SNP majority government in 2011 and the consequentindependence referendum.[15]
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There is a proposal to amend section 57(2) of theScotland Act 1998, which provides that theLord Advocate, as a member of theScottish Executive, has no power to do anything in contravention of the European Convention rights. Given that, alongside being the adviser to and representative of the Scottish Government in Scots law, the Lord Advocate is head of the system of criminal prosecution in Scotland and every prosecution in a Scottish court proceeds with his/her authority, this provision effectively allows any human rights issue raised in any criminal proceedings in Scotland effectively to be appealed to theUK Supreme Court as a constitutional "devolution issue".[16]
The Supreme Court consists of two Supreme Court judges from Scotland and ten judges from other parts of the United Kingdom. When hearing appeals the Supreme Court sits with a bench of at least five judges, so even if both Scottish judges are present for a Scottish appeal, the majority of the bench will be judges who may not be especially well versed in Scots law and criminal procedure. According toLord Hope of Craighead, the Deputy President of the Supreme Court, non-Scottish judges will in practice defer to their Scottish colleagues in Scottish cases, and often simply concur with judgments written by the Scottish judges. However, the situation is seen by some, including theScottish Government, as undermining the status of theHigh Court of Justiciary as the final court of appeal in criminal matters in Scots law, and even of undermining the integrity of Scots law. TheAdvocate General for Scotland asked an expert group, chaired by SirDavid Edward, to consider this issue and make recommendations, which led to the amendments to the Scotland Bill proposed by the UK Government. The Scottish Government remains concerned that the amendments may not fully address the issue, particularly as a result of the decision of the Supreme Court inFraser v HM Advocate, and appointed their own expert group, chaired byLord McCluskey, to consider the matter and report back.
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