Twenty-five years into devolution, you might think the boundaries of Scottish legal authority would be well settled by now. You would be wrong. The fault lines between reserved and devolved powers continue to produce legal disputes that test the constitutional settlement to its limits.
The most visible of these disputes have concerned Brexit-related legislation, where the UK Government has repeatedly legislated in areas that Holyrood considers devolved. The United Kingdom Internal Market Act remains a particular source of grievance. But the tensions run much deeper than any single piece of legislation.
Consider employment law, which is reserved to Westminster. Scottish ministers have no power to set the minimum wage, regulate zero-hours contracts, or reform trade union legislation. Yet the consequences of these policies fall squarely on Scottish workers and Scottish public services. The Scottish Government has tried to work around these restrictions through procurement rules and public sector pay policies, but workarounds are no substitute for legislative competence.
Immigration is another area where the mismatch between devolved responsibilities and reserved powers creates practical problems. Scotland’s demographic challenges are well documented. Rural communities are losing population, the care sector cannot recruit staff, and universities depend on international students. Yet immigration policy is set in London, with little regard for Scotland’s distinct needs.
The Supreme Court’s decision in the independence referendum reference case clarified one important point: the Scottish Parliament cannot legislate for a referendum on independence without Westminster’s consent. But it left many other constitutional questions unresolved.
What interests me as a lawyer is not the political argument for or against further devolution, but the practical question of how the current settlement actually works. And the honest answer is that it works less well than it should.
The Sewel Convention, that Westminster will not normally legislate in devolved areas without Holyrood’s consent, has been breached so often that it barely functions as a convention at all. The intergovernmental machinery that is supposed to resolve disputes between Edinburgh and London remains inadequate.
None of this is sustainable. Whatever one’s views on Scotland’s constitutional future, the current arrangements need repair. The alternative is a continuing erosion of the devolution settlement by a thousand small cuts, each one individually defensible but collectively corrosive.