The Levelling Up and Regeneration Bill supports the Government’s manifesto commitment to level up the United Kingdom. The Government’s objective is to reverse geographical disparities between different parts of the United Kingdom by spreading opportunity more equally.
At the time of writing, the Bill is at Committee stage in the House of Commons. The Scottish Government lodged a Legislative Consent Memorandum (LCM) related to the Bill on 27 July 2022.
The Scottish Government stated in its LCM that it had no engagement with the UK Government on the Levelling Up White Paper and the twelve ‘levelling-up missions’ it set out, nor on Part 1 of the Bill or the requirement for legislative consent.
This blog explains the significance of Part 1 of the Bill and considers how it may affect Scotland. SPICe will blog further on Parts 3 and 5 of the Bill.
Background to the Levelling-up and Regeneration Bill
On 2 February 2022, the UK Government published the Levelling Up the United Kingdom White Paper. This gave the UK Government’s view on the economic, social and environmental disparities between and within regions of the UK, and its assessment of their causes. It argued that levelling-up requires a “focused, long-term plan of action and a clear framework” to act on this.
The White Paper proposed a related roadmap, consisting of twelve “levelling-up missions” under four “focus areas”:
- Boosting productivity, pay, jobs and living standards by growing the private sector, especially in those places where they are lagging;
- Spreading opportunities and public services, especially in those places where they are weakest;
- Restoring a sense of community, local pride and belonging, especially in those places where they have been lost; and
- Empowering local leaders and communities, especially in those places lacking local agency.
Further detail of the twelve missions can be found on pages 6 and 7 of the Executive Summary to the White Paper. The White Paper specifies that the missions are “ambitions that the UK Government has for all parts of the UK” and that
delivering on them, while being fully respectful of the devolution settlements, will require close and collaborative work with the devolved administrations.
In its most recent report on ‘The Impact of Brexit on Devolution’, the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee (CEEACC) highlighted challenges around the operation of the Sewel Convention and the use of delegated powers, including those conferred on UK Ministers to act in devolved areas.
Section 28(7) of the Scotland Act 1998 provides that the UK Parliament has the power to make laws for Scotland. However, the Sewel Convention meant that the UK Parliament would not normally legislate in devolved areas without the consent of the Scottish Parliament. The Sewel Convention was written into the Scotland Act as section 28(8) by virtue of the Scotland Act 2016.
Since the referendum on EU exit in 2016, the UK Parliament has passed primary legislation on several occasions where consent has been sought from but withheld by the Scottish Parliament under the Sewel Convention. Many of the significant new Acts (primary legislation) passed in the UK Parliament post-EU, and a smaller number in the Scottish Parliament, have given UK and Scottish Ministers new powers to make secondary legislation. This includes significant new powers for UK Ministers to act in devolved areas.
The result of this is scope for an increase in secondary legislation in areas within the Scottish Parliament’s competence being laid in the UK Parliament rather than in the Scottish Parliament. In its report, CEEACC noted that:
prior to the UK leaving the EU, UK Ministers would principally make secondary legislation in devolved areas that implemented EU obligations and with the consent of Scottish Ministers. The UK Government did not generally have powers to make secondary legislation in devolved areas and did not often do so.
The Levelling-up and Regeneration Bill appears to continue this trend toward a stronger UK Government presence in devolved areas. It does so by delegating some powers to UK Ministers in devolved areas (including environment and planning) and by placing a duty on UK Ministers to set UK-wide policy missions, potentially impacting on devolved areas.
Overview of the Bill and LCM
There are three parts of the Bill which are of particular significance to Scotland:
- Part 1 would create a duty on UK Government Ministers to publish a statement of levelling-up missions. The missions would apply across the UK and UK Ministers would have to report annually on the progress towards each mission.
- Part 3, Chapter 1 would give the UK Secretary of State the power to regulate the processing of planning data by planning authorities and create binding standards for processing data across the UK.
- Part 5 would give the UK Secretary of State the power to specify outcomes relating to environmental protection and would introduce a new approach to environmental assessment in the form of Environmental Outcome Reports (EORs).
It is important to note that although the White Paper sets out the UK Government’s early intentions for the content of the levelling-up missions, Part 1 of the Bill does not contain the missions. If the Bill is passed, the content of the missions would be detailed via a statement to the UK Parliament. While it is expected that such a statement would reflect the framework set out in the White Paper, there is nothing in the Bill that would preclude new or amended missions being introduced by the UK Government.
As the UK Government’s statement of levelling-up missions will be laid in the UK Parliament, there will be no role for the Scottish Parliament to scrutinise the contents of the missions, even where they relate to devolved areas.
The UK Government and the Scottish Government have differing views on whether legislative consent is required for Part 1 of the Bill. On one hand, the UK Government believes that consent is not required. Its position, as set out in the Explanatory Notes to the Bill, is that:
Since these duties apply to inequalities across the UK as a whole this does not relate to the legislative competence of the Northern Ireland Assembly, the Scottish Parliament or Senedd Cymru.
On the other hand, the Scottish Government believes this part of the Bill does require consent, stating in the LCM that:
It is our position that Part 1 of the Bill triggers the need for a LCM as it contains provision applying to Scotland for purpose(s) that are within the legislative competence of the Parliament. […] In substance these provisions will, and are intended to, provide a legislative framework to underpin a role for UK Ministers in devolved areas. Statements on levelling-up missions would include matters within the devolved competence of the Scottish Parliament.
Impact on areas of devolved competence
It remains unclear how the UK Government intends to implement its levelling-up missions across the UK. Part 1 of the Bill does not give UK Ministers any powers (such as regulation-making powers) which would allow them to introduce secondary legislation to action the missions. It could be the case that implementation of the missions will rely on UK Ministers’ powers elsewhere.
For instance, UK Ministers have the power to spend in devolved areas under the UK Internal Market Act 2020. This power has enabled the Levelling Up Fund, which requires local authorities across the UK to bid for funding in respect of specific projects such as town centre regenerations.
The Scottish Government has been vocal about UK Government spending in devolved areas:
While the government welcomes all additional funding for Scotland, it is unacceptable for the UK Government to decide how money should be spent in areas of devolved responsibility, especially without any meaningful consultation or engagement. It is for the Scottish Government, accountable to the Scottish Parliament, to decide how policies in devolved areas are developed and delivered in Scotland, including allocation of funding, in line with the devolved settlement.
Part 1 of this Bill may lead the UK Government to take a more proactive approach to policy decisions and funding allocation in devolved areas through its statement of levelling-up missions. However, the Bill does not introduce the levelling-up missions themselves; just the concept of them. The White Paper only provides insight into how the UK Government plans to deliver on the missions in England. Furthermore, the missions are formulated very broadly in the White Paper. While some bear an obvious relation to areas of devolved competence (such as health, education and housing), others are conceptualised even more broadly (like ‘Pride in Place’ and ‘Living Standards’) and are likely to cover areas of both reserved and devolved competence.
As such, what the missions will cover and how they will seek to achieve their aims remains uncertain, particularly insofar as they relate to devolved matters.
Sean Taheny, Researcher, SPICe