Summary and Background
3.The Welfare Reform (Further Provision) (Scotland) Act 2012 makes the provisions required by the Scottish Parliament’s partial refusal of legislative consent for the UK Welfare Reform Act 2012(1) (“the UK Act). It is an enabling Act which gives powers to the Scottish Ministers to make provision in consequence of the UK Act for devolved purposes.
4.The Act largely mirrors relevant clauses of the Bill for the UK Act which were removed during that Bill’s Third Reading in the House of Lords. Their removal was the consequence of full legislative consent for that Bill having been withheld by the Scottish Parliament. Unlike the relevant clauses of the Bill for the UK Act, however, the provisions in the Act do not explicitly refer to the enabling powers being exercisable only to make provision which would be within the legislative competence of the Scottish Parliament if contained in an Act of the Parliament. This would have been a necessary express qualification in the UK Act, because the UK legislation could otherwise have conferred a wider power on the Scottish Ministers to enable them to make provision for any purpose whether devolved or reserved. The Scottish Government considers that a similar express qualification in the Act is unnecessary because in its view all of the powers conferred in the Act are implicitly limited to being exercisable within the limits of devolved competence in the following way. The legislative objective of the Act is to enable the Scottish Ministers to make provision by regulations only for devolved purposes. To the extent that the text of the Act’s provisions, which bear a relationship to provision made by or under Parts 1 and 4 of the UK Act relating to the reserved matter of social security provision, could be read as being outwith competence, the Scottish Government considers that the operation of section 101 of the Scotland Act 1998 would ensure that the provisions could be read as narrowly as required for them to be within competence and for them to have effect accordingly. The Scottish Government furthermore considers that the Scottish Ministers will be constrained in exercising these enabling powers within the limits of their devolved competence set out in section 54 of the Scotland Act 1998.