Public Law Update #1: Scotland and the Future of the Union

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This post is the first in a series of six updates for the 2015-16 academic year. The posts in this series are co-written by Mark Elliott and Robert Thomas, the authors of Public Law, published by Oxford University Press. Further information about Public Law can be found here. Our focus in these updates is on six key areas in which the constitution is undergoing, or is likely to undergo, change. We have taken as our reference point the outcome of the 2015 general election, and its likely implications for the future of the British constitution. In this first post in the series, we consider the constitutional ramifications of the outcome of the Scottish independence referendum. 

The pace of constitutional change as regards Scotland’s place in and relationship with the remainder of the United Kingdom has been extraordinary. On 18 September 2014, the Scottish people voted in the Scottish independence referendum. The question asked was: “Should Scotland be an independent country?” Voters had the option of voting either yes or no. Some 3,623,344 votes were counted (representing 84.6% of the electorate). 2,001,926 people (55.25% of all voters) voted “no” and 1,617,989 people (44.65% of all voters) voted “yes”. The “yes” campaign was headed by the then leader of the Scottish National Party (SNP), Alex Salmond. “Better Together” was the principal organisation that represented the “no” campaign and was headed up by Alastair Darling MP, a former Labour minister and Chancellor of the Exchequer (2007-2010). “Better Together” was comprised of the main unionist political parties in Scotland: Scottish Labour; the Scottish Conservative Party; and the Scottish Liberal Democrats.

The campaign was passionate and ignited much interest in political and constitutional issues concerning the future of Scotland and of the United Kingdom. A couple of days before the referendum and with the polls suggesting the race was neck and neck, a vow was made by the Prime Minister, David Cameron, the then Deputy Prime Minister, Nick Clegg, and the then leader of the Labour Party, Ed Miliband. This vow pledged that a “no” vote would deliver “faster, safer and better change” than would independence. The vow stated that “extensive new powers for the parliament will be delivered by the process and to the timetable agreed and announced by our three parties”.

The Smith Commission and the Scotland Bill

Following the referendum, the Smith Commission was established to oversee the process to take forward the devolution commitments on further powers for the Scottish Parliament. Two months later in November 2014, the Smith Commission Report was published. This report included an agreement between the five Scottish political parties — Conservative, Labour, Green, Liberal Democrat, and SNP — that new powers would be devolved to the Scottish Parliament and to Scottish Ministers. The Agreement was built upon three pillars: (1) providing a durable but responsive constitutional settlement for the governance of Scotland; (2) delivering prosperity, a healthy economy, jobs, and social justice; and (3) strengthening the financial responsibility of the Scottish Parliament.

On 22 January 2015, the UK Government published a Command Paper containing draft clauses which aim to take forward the Heads of Agreement contained in the Smith Commission Report. The Scotland Bill 2015 was introduced into the UK Parliament in May 2015. In the meantime, in the UK general election in May 2015, the SNP achieved a resounding success: it won 56 seats out of the 59 Scottish constituencies represented in the Westminister Parliament. In September 2015, it was reported that the SNP is considering setting out the timescale and conditions for a possible second referendum on independence in its manifesto for the Scottish Parliament elections that will take place in 2016.

The agreement reflected in the Smith Commission Report covers some eight areas: constitutional matters; fiscal framework; tax; welfare; public bodies, executive agencies, and Crown Estates; civil protections and advice; transport; and energy. As regards constitutional matters, the Smith Commission Agreement recommended that the biggest transfer of powers to the Scottish Parliament and Scottish Ministers since the start of devolution should come with greater flexibility for the Scottish Parliament and Scottish Government to manage their own arrangements and with statutory recognition of the enduring place of the Scottish devolved institutions within the UK’s broader constitutional constitutional landscape. Accordingly, the Scotland Bill states that the Scottish Parliament and Scottish Government are “permanent” institutions. The Bill also places the Sewel Convention — whereby the UK Parliament does not normally legislate on devolved matters without the consent of the relevant devolved institution — on a statutory footing.

The Bill will give the Scottish Parliament powers to make decisions about all matters relating to the arrangements and operations of the Scottish Parliament and Scottish Government, including: (1) powers over the overall number of Members of the Scottish Parliament (MSPs) or the number of constituency and list MSPs; and (2) powers over the disqualification of MSPs from membership and the circumstances in which a sitting MSP can be removed. The Scottish Parliament will also have all powers in relation to elections to the Scottish Parliament and local government elections in Scotland (although similar powers will not be given to the Scotitsh Parliament concerning Westminster or European Parliament elections insofar as they pertain to Scotland). Another important aspect of the changes contained in the Scotland Bill is the devolution of income tax powers to the Scottish Parliament. This increases the ability of the Scottish Parliament to vary the rate of income tax and hence also public spending.

Deeper and broader constitutional issues

The Scotland Bill — currently progressing through Parliament — is an important piece of constitutional legislation. It establishes a more explicit constitutional framework for Scotland vis-à-vis the rest of te UK and represents a deeper devolution of political and fiscal power to Scotland. The Bill also raises important and wider questions concerning the nature of the UK constitution. If the Scottish Parliament and Scottish Government are “permanent” institutions, then how is it possible to maintain the view that the doctrine of parliamentary sovereignty is the fundamental principle of the UK constitution? The response of some lawyers to questions of this nature has often been to deploy formalistic reasoning. If legislation states that something is irreversible, then it is irreversible — but only for so long as that legislation itself remains valid law; it is always open to Parliament to repeal or amend that legislation — and so Parliament remains sovereign. This type of reasoning may be correct in formal terms, but it runs altogether against the political and democratic reality. The UK now has four legislatures, and four democratically legitimate governments. The establishment of these institutions has been approved through referendums and they are themselves democratically elected. They are now permanent parts of the constitution

There are two possible responses to this position. First, constitutional lawyers and students could simply accept the widening gap between the formal constitutional principle of parliamentary sovereignty and political reality. Alternatively, lawyers could view the Scotland Bill, and other developments, as a catalyst for — or even evidence of — deeper constitutional changes. Perhaps it is time to modify significantly the traditional doctrine of parliamentary sovereignty or replace it altogether? Perhaps the traditional doctrine of parliamentary sovereignty is increasingly out of date and a largely mythical shibboleth? It remains legally correct to say that the courts cannot strike down legislation, but it is no longer correct to say — if it ever was — that the UK Parliament can make or unmake any law whatsoever.

Beyond the relatively narrow issue of sovereignty, wider and complex issues arise which are taking the UK constitution into uncharted territory. Perhaps the UK is moving toward a more federal system of government? Or perhaps — because of the size of England — the UK could never have a formal federal constitution? If so, then is a new framework may be necessary in order to make sense of the UK’s developing constitution? Developing this point in a recent blog post, Jim Gallagher has argued that the Scotland Bill “presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together”. How is further devolution to Scotland to be accommodated alongside other big constitutional changes, such as human-rights reform, possible alterations to the UK’s relationship with the EU, devolution to and within other parts of the Union, and political reform in Westminster? There is also a much bigger issue: what, if any, is the overall constitutional design, direction, and strategy? No-one really knows — precisely because there is no such strategy. Specific issues of constitutional change remain a matter of essentially political decision and compromise. The constitution itself is changing rapidly, but the processes by which the constitution changes — through incremental, ad hoc reforms that address fragments of but never the whole of the constitutional picture — have remained the same.

Dissatisfaction with this piecemeal approach have recently caused questions around codification and the adoption of a written constitution to re-emerge in a new light. No longer are such questions essentially theoretical ones for constitutional anoraks. Rather, they are beginning to assume the status of pressing issues as the existing constitution’s limited capacity to accommodate an increasingly diverse political union become painfully apparent. It was against this background that, earlier this year, the Bingham Centre for the Rule of Law proposed a new constitutional text — a “Charter of the Union” — as the foundation “a fair and durable settlement between the four nations of the Union”. A further suggestion, adopted by both the Labour Party and Liberal Democrat Party during the 2015 general election, is that a constitutional convention should be established to consider these issues. However, the Conservative Party has declined to do this, meaning that there is no immediate prospect of such a process getting underway. Nevertheless, it is clear that constitutional reform — and a kind of constitutional reform that transcends the fragmented approach that has so far dominated — is moving up the political agenda. It is against this background that, in subsequent posts, we will consider such issues as devolution within England, English votes for English laws, and the adoption of a British Bill of Rights.

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