Public Law

oof of building with Saltire and Union Jack flagThis final instalment of our series considers the Liberal Democrats’ proposals for reforming the UK constitutional settlement in the event of a no vote in next month’s referendum. Our introduction to this series is here, and you can find our posts on the respective Labour and Conservative proposals here and here.

Sir Menzies Campbell MP (who is of course also a Scottish QC) was appointed in 2012 to lead a review which culminated in a detailed report entitled “Federalism: the best future for Scotland”. Coverage of the report can be found here. Amongst other things, that report proposed:

  • That the Scottish Parliament should have control of the rates and bands of income tax, capital gains tax, inheritance tax and air passenger duty;
  • That Corporation tax should continue to be operated and collected at UK level, but the proceeds raised in Scotland would be assigned to the Scottish Parliament;
  • A federal arrangement within the UK, including an interesting “power of initiation” where the policy objective of one level of government may require some action to be taken which is within the legal competence of another level of government. For example, if the Scottish Government wished to change the system of local government finance then it could initiate discussions with Westminster to address changes required to benefits or tax collection arrangements that are reserved to UK level.
  • A decentralisation of power with extensive autonomy for local government and local communities.

The report also suggested making very significant changes to the constitutional framework of the UK as a whole, including establishing an English Parliament and various regional assemblies in a federal structure.

More recently, Sir Menzies was asked to produce a second report into “the emerging consensus around more powers” and to set out a timetable by which more powers could be delivered.

This second report was published in March. Its conclusion are summarised on the Lib Dem website (at the moment there seems to be a problem with the link in that summary to the report itself), and some of the media coverage is here, here and here.

In our first post of this series, we set out a likely process for transferring further powers to the Scottish Parliament in the event of a “no” vote, and the ‘Campbell II’ report was largely consistent with those. It recommends a meeting of political parties and civic society within thirty days of a ‘no’ vote to seek consensus on further devolution. Manifestos for the 2015 general election would then set out proposals for further powers, to form part of the 2015 Queen’s speech.

Sir Menzies also sought to identify what areas of consensus there may be, by reference to what had been said between his first and second reports, including:

  • That the Scottish Parliament’s financial powers should be expanded so that it is responsible for raising the taxes to pay for the majority of its spending; and
  • That the Scottish Parliament should be entrenched permanently.

However, it should be noted that the latter point is not one of the Conservatives’ proposals (which in fairness were published after Sir Menzies’ report), perhaps for the reasons we set out in our post on Labour’s similar suggestion. Recommendation 7 of the Campbell II report nevertheless suggests that entrenchment of the Scottish Parliament could be achieved by a resolution in both Holyrood and Westminster in favour of ‘entrenching’ legislation, so that the Scottish Parliament would have a role in establishing its own permanence. However, such a resolution could only ever have political value, and could not create a legal obligation requiring future Parliaments to abide by it.

That concludes our overview of the various proposals for further devolution in the event of a ‘no’ vote next month. Whether the detail of any of those proposals will have an effect on the outcome will probably never be known, but what the similarities and differences both make clear is that even a ‘no’ vote will not put an end to discussions on Scotland’s constitutional future. Make up your own mind how you feel about that!

Government, Regulation and Competition Law

Brodies’ market-leading government, regulation & competition team advises local authorities, public bodies and commercial clients in judicial reviews, statutory appeals and in bringing and defending regulatory enforcement action.
Government, Regulation and Competition Law