Case study The Gender Recognition Bill and Devolution

The Calman Commission and the Smith Commission were two key groups focused on expanding devolution in Scotland. Calman recommended giving Scotland more control over money, while Smith argued for full authority over income tax rates and bands, along with other policy ideas.

In 2008, after the Calman report, powers related to planning and conservation were transferred to the Scottish Parliament.

The Scotland Act of 2016 put into law the ‘devo-max’ plan for Scotland. This included control over onshore oil and gas, rail franchising, and most importantly, full power over Scottish Income Tax Rates, following Smith’s recommendations. It also made clear that the Scottish Parliament and government cannot be abolished without a referendum.

Scottish Elections (Representation and Reform) Act 2025: Passed in December 2024 and received Royal Assent in January 2025, this Act bans dual mandates (serving as both an MP and MSP simultaneously) and extends candidacy rights to certain foreign nationals. 

The UK Internal Market Act 2020 (IMA) was designed to ensure seamless trade between the four nations post-Brexit, but it has become a primary flashpoint for "constitutional friction." Critics in devolved administrations often describe it as a "power grab" because it allows the UK Government to override local standards.

Leaving the EU meant the rules of the EU internal market would no longer apply in the UK, except in Northern Ireland, where maintaining an open border with Ireland meant continuing to apply EU rules in relation to goods. To ensure businesses could trade freely across the UK going forward, the UKIMA introduced two new ‘market access principles’.

The most significant is the principle of ‘mutual recognition’, which guarantees that goods and services that originate in, or are imported into, one part of the UK can be traded or provided anywhere in the UK, by default. It means that goods and services do not have to comply with different rules and regulations that might be in place in different parts of the UK, as a result of the four governments making distinctive choices.

While it was welcomed by business, it generated serious challenges for devolution.

The IMA has directly led to the blocking or delay of several high-profile devolved policies:

• The Deposit Return Scheme (DRS): The Scottish Government’s plan to include glass in its recycling scheme was blocked by the UK Government using the IMA. The UK argued it would create trade barriers, forcing Scotland to delay the scheme until 2027.

• Single-Use Plastics: Both Wales and Scotland faced legal hurdles when banning items like plastic straws and cutlery, as the IMA initially required them to accept such items if they were legal in England.

• Gender Recognition Reform: While primarily blocked via Section 35 of the Scotland Act, the UK Government cited the potential for a "divergent internal market" as a key justification for intervention.

Before Brexit, the EU Single Market acted as a common framework. Now, the IMA fulfills this role but lacks the "consent-based" nature of the previous system:

• The Sewel Convention: This convention states the UK Parliament will "not normally" legislate in devolved areas without consent. However, the UK Supreme Court has ruled that this is a political, not legal, constraint, allowing the IMA to bypass devolved objections.

• Common Frameworks: These are voluntary agreements between the four nations to align policies. Devolved leaders argue the IMA undermines these frameworks by giving the UK Government a "veto" over local experimentation.

Recent Developments (2025–2026)

• The 2025 IMA Review: In early 2025, the UK Government launched a formal review of the Act. While the UK Labour government promised a "reset" of relations, the Scottish and Welsh governments have criticized the review for not being "co-designed," fearing it will only offer cosmetic changes.

• The Windsor Framework Exception: Northern Ireland is in a unique position where EU goods standards apply to avoid a hard border on the island of Ireland, creating a complex three-way tension between the IMA, EU law, and the Belfast (Good Friday) Agreement.

Has devolution been a success?

• 1999–2007: Labour-Liberal Democrat Coalition
  The first two sessions were governed by a formal coalition between Scottish Labour and the Scottish Liberal Democrats. Donald Dewar served as the inaugural First Minister.

• 2007–2011: SNP Minority Government
  The SNP became the largest party for the first time in 2007, forming a minority administration led by Alex Salmond with informal support from the Scottish Green Party.

• 2011–2016: SNP Majority Government
  In a result that defied the expectations of the proportional voting system, the SNP won an outright majority (69 of 129 seats) in 2011. This mandate led directly to the 2014 independence referendum.

• 2016–2021: SNP Minority Government
  The SNP remained the largest party but lost its overall majority, continuing as a minority government again supported informally by the Greens. Nicola Sturgeon succeeded Salmond as First Minister in late 2014.

• 2021–2024: SNP-Green Power-Sharing (Bute House Agreement)
  Following the 2021 election, the SNP and Scottish Greens entered a formal Bute House Agreement, bringing Green MSPs into government for the first time.

• 2024–Present: SNP Minority Government
  Then-First Minister Humza Yousaf ended the agreement with the Greens in April 2024, returning the SNP to a minority administration. John Swinney currently leads the government as First Minister. 

Current State of Play

As of early 2026, the current party balance in the 129-member Parliament is:

• Scottish National Party (SNP): 60 MSPs (Governing party)

• Scottish Conservatives: 28 MSPs (Official Opposition)

• Scottish Labour: 21 MSPs

• Scottish Greens: 7 MSPs

• Scottish Liberal Democrats: 5 MSPs

• Reform UK: 1 MSP 

 Scottish Parliament election is scheduled to be held on or before 7 May 2026. Recent polling indicates a potential shift, with Reform UK showing increased support and the SNP facing significant challenges to their long-term dominance