Public Law

Constitutional law anoraks (you know who you are) will have spotted that the Smith Commission’s Report contains proposals that sit uneasily with fundamental principles of the UK constitution. The Report says that the convention that the UK Parliament should not legislate in a devolved area without the Scottish Parliament’s consent (via a legislative consent, or ‘Sewel’, motion) is to be “put on a statutory footing”, while “UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions”.A picture of the Scottish Parliament

This reflects the view, expressed by Gordon Brown and others during the referendum campaign, that devolution should be ‘entrenched’ (i.e. it should no longer be legally possible for the UK Parliament to dissolve it). This desire appeared in the Labour and Lib Dem proposals for further devolution, and post-referendum was adopted by the SNP.

However, as we have pointed out previously, the inability of one Parliament to bind future Parliaments is perhaps the fundamental principle of the (unwritten) UK constitution – in IT terms, it is not a bug but a feature. The Scotland Act 1998 made clear, in a way which (at least at the time) was thought to be unnecessary, that the creation of the Scottish Parliament did not affect the sovereignty of the UK Parliament.

Legislation abolishing the Scottish Parliament is nevertheless so unlikely in political terms as to be practically impossible, unless of course there is a significant change of heart in Scotland about the desirability of devolution. The UK Parliament legislating on devolved matters against the wishes of the Scottish Parliament is scarcely more likely. However, the premise of these recommendations is that the political constraints on such actions are insufficient. That does not mean it is possible to add legal constraints, however, as any Act that purported to prohibit such steps could itself be repealed (if not simply ignored) by a future Parliament.

The UK Parliament therefore cannot enact legislation that purports to make the Scottish Parliament ‘permanent’ and to prohibit a future Parliament from providing otherwise, at least not without causing a constitutional revolution and perhaps even a crisis. Such an approach would therefore go far beyond the status of Holyrood, raising fundamental and even existential questions about the constitution of the UK as a whole and potentially bringing with it all manner of unintended consequences.

There may be good arguments for reforming the way the UK constitution operates, but purporting to create a new category of ‘unamendable’ legislation in an attempt to solve an essentially non-existent problem would seem very much like a case of the tail wagging the dog.

Happily, there are clues in the Report’s language that it is not in fact the intention to go down quite such a radical route. On the ‘Sewel’ convention, for example, there would be nothing problematic about placing it “on a statutory footing” by imposing on the UK Government and/or Parliament a statutory obligation to consult the Scottish Government and/or Parliament about legislation applying in Scotland and affecting a devolved area. Similarly, legislation could conceivably “state” that the Scottish Parliament and Government are permanent, without necessarily purporting to prohibit future legislation from providing to the contrary. While one might question the appropriateness of Parliament enacting legislation of merely symbolic or declamatory value, that would at least not be unconstitutional.

So that’s the devolution of taxation, the devolution of other powers and the constitutional position dealt with. But what happens next? Paragraph 15 of Lord Smith’s Report records that “the UK Government has undertaken to produce draft clauses implementing the consensus set out in this report. It has stated that it will publish those clauses by 25 January 2015”. Note that this refers to the publication of draft clauses, rather than a draft Bill. This presumably reflects the short timetable, perhaps as a gesture of sympathy towards whichever poor Parliamentary draftsman ends up being tasked with producing the statutory language. It will be difficult enough to give legislative form to what are in some cases fairly vague aspirations, without also having to find time for all the formalities (not least the identification of amendments to related legislation) that one would want to appear in a fully-formed Bill.

There would in any event be little point even attempting to introduce fully-formed legislation at Westminster prior to May’s General Election, as it would not have nearly enough time to pass through Parliament prior to dissolution. The legislation will therefore have to be introduced in the next Parliament, which means it could become embroiled in any negotiations over who will form the Government if there is another hung Parliament. That is particularly the case if there is a large SNP contingent, given their public criticism of the Commission’s proposals.

So it looks like Scotland’s constitutional future will remain high on the agenda for a good while yet…

Charles Livingstone

Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone