In a federal system of government, residual powers are generally defined as belonging to authorities that are smaller than the federal government – such as the States in the USA or the Länder in Germany. The UK has the opposite arrangement – all powers are assumed to reside in Parliament unless there has been a specific delegation to the contrary.
The Scotsman has twice this weekend reported on problems facing a proposal to stop cars parking on pavements. The Responsible Parking Bill has taken more than two years to wend its way through the Scottish Parliament, but despite widespread support it seems to have stalled. There were initial objections raised about whether the Scottish Parliament had the power to act about parking, but it has passed other legislation on disabled person’s badges, and on that basis it could reasonably be argued that there isn’t really a problem about legislative competence. The subsequent discussions have focused on other issues – the cost of enforcement, the dissolution of Scotland’s traffic warden service by Police Scotland, and the burden on local authorities.
Except, it seems, that there is a problem. The Scotland Act 1998 reserves a range of powers, and among the powers it reserves is the scope of the 1988 Road Traffic Act. When that Act was originally passed, it made parking on pavements illegal. The provision (section 19A) lasted three years, before the government of the day gave it up: too difficult, too expensive. So what are the powers that are reserved to Westminster? The common-sense view ought to be that the powers that were reserved were the powers in force at the time of the Scotland Act, not powers that were previously defined and repealed – in which case there is really no problem of legislative competence. If the reports are correct, however, that does not seem to be how the Scottish Parliament’s lawyers see it. They have apparently argued that as the Scottish Parliament doesn’t have delegated powers related to parking, but local authorities do, the bill could only proceed by instructing local authorities to use the powers they have, which are derived from Westminster legislation.
English local authorities have a general power to promote welfare. Scottish local authorities don’t, because their power derives from the Scottish Parliament, which is subject to reserved powers. We seem to be again in the situation where the Scottish Parliament has been accorded fewer powers than an English local authority.