Written Evidence Submitted by Professor Tom Mullen (DSB 11)
This paper gives my views on the draft clauses presented in the command paper, Scotland in the United Kingdom: An enduring settlement (Cm 8990, 2015). They are given in a purely personal capacity.
Executive Summary
1 The Permanence of the Scottish Parliament and Scottish Government
Draft clause 1 inserts new subsection 1A in section 1 of the Scotland Act 1998 (SA). It reads:
“(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.”
A related amendment (to section 44, SA) reads:
“(1) There shall be a Scottish Government.
(1A) A Scottish Government is recognised as a permanent part of the United Kingdom’s constitutional arrangements.
(1B) The members of the Scottish Government shall be—”
These provisions are presented as implementing of the Smith Commission Report which stated:
“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.”
Paragraph 21 is ambiguous. It could be read as recommending (a) that legislation would be passed which would make the Scottish Parliament and Scottish Government permanent institutions, or (b) as recommending that such a statement would be included in an Act of Parliament without any implication as to its legal effects. This ambiguity makes it impossible to state unequivocally whether the draft clause fulfils the Commission’s recommendation.
The draft clause would not have the effect of making either the Scottish Parliament or the Scottish Government permanent. The first reason for doubting whether it has this effect is the peculiar language. The use of the phrase ‘is recognised’ seems more appropriate for a statement of fact. It is not clear, therefore, whether a court would treat it as a normative statement capable of being given legal effect. The second reason is the principle of the sovereignty of Parliament. On the orthodox view of sovereignty, any statement that the Scottish Parliament is a permanent institution would not bind a future Parliament which could simply repeal it.
It is noteworthy that there is no attempt to entrench the provision, e.g. by requiring an enhanced majority in either House as a condition of passing a Bill abolishing the SP, or a popular referendum before abolition could be put into effect. It is certainly open to question whether a court would give effect to such provisions by holding that a Bill purporting to abolish the SP without satisfying such requirements was invalid, but the possibility cannot be ruled out in our evolving constitutions. To include such additional requirements would at least indicate that a serious attempt was being made to make the SP and the SG permanent features of the constitution. This, however, is clearly not a serious attempt to entrench the position of the SP and the SG. If a Bill were enacted in these terms it would as a matter of law, be no more difficult than it is now to abolish the SP or the SG.
However, a statutory provision may have political as well as legal effects. It might be thought that the enactment of such a provision would have strong symbolic force and would make it politically more difficult for a future UK Government to propose, or a future UK Parliament to enact, abolition of the SP or SG. Yet it is doubtful if these provisions have much symbolic force. They merely reinforce what has already become established as a principle underpinning the UK’s constitutional order, namely that it is for the Scottish people to determine their form of government. As the holding of the referendum confirms, that principle even extends to the Scots leaving the UK if they choose to do so. One assumes the provisions are not intended to prevent Scotland leaving the UK if some future referendum produces a majority for independence. They can only sensibly mean that devolution cannot be reversed. But, it is already accepted that the SP and the SG, having been set up in response to a popular referendum, cannot feasibly be removed without one. So, if it is intended to commit the UK Parliament and the UK Government to keeping the SP and the SG this is something to which they are already committed and compelled to respect by force of political circumstances. Accordingly, it is unclear what if any political benefits would be achieved by enacting these provisions.
2 The Sewel Convention
Paragraph 22 of the Smith Commission Report states: “The Sewel Convention will be put on a statutory footing.” Draft clause 2 seeks to give effect to the recommendation. It adds to section 28, SA a new subsections as follows:
“(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
Again, it impossible to state unequivocally whether the draft promise fulfils the Smith Commission’s recommendation because the recommendation is ambiguous. The phrase “put on a statutory footing” does not indicate clearly what legal effect the Commission intended the principle expressed in the Sewel Convention to have. It is equally unclear what effect draft clause 2 itself is intended to have. The phrase “put on a statutory footing” could be read as suggesting that the principle of the convention – that the UK Parliament will not legislate on devolved matters without the SP’s consent – would become an enforceable rule of law. As with draft clause 1, it is not clear whether a court would treat this as a normative statement capable of being given legal effect.
On the other hand, if we assume that, despite the unusual wording, a court would consider the provision to be enforceable in principle, it is not clear that it would be readily enforceable in practice. The use of the phrase ‘not normally” clearly implies that the UK Parliament might sometimes legislate on a devolved matter without the consent of the SP, but there is no indication of the circumstances in which this would be permissible. It is, therefore, a rather open-ended get-out clause for any future UK Parliament which wished to legislate on a devolved matter without the consent of the SP. This would make it very difficult for a court to give a ruling that the decision to legislate without SP consent was incompatible with the clause.
Again, it is noteworthy that there is no attempt to entrench the provision so that it could be repealed in the same way as any other legislation.
Accordingly, I conclude that if this draft clause were enacted, it would, as a matter of law, be no more difficult than it is now for the UK Parliament to legislate on a devolved matter without the consent of the SP.
Of course, the intention may be that the clause would have political rather than effects. It might be suggested that the clause would make it more difficult for a future UK Parliament to act contrary to the convention. This may be so, but I doubt that any such effect would be substantial. The convention is already well established and understood and has generally been followed. It is doubtful if a legislative provision which is effectively unenforceable will add much to the political factors which encourage adherence to the convention.
3 Electoral System
The Smith Commission recommended that the SP should have all powers in relation to elections to the Scottish Parliament and local government elections in Scotland (but not Westminster or European elections), including powers over campaign spending limits and periods and party political broadcasts. It also recommended that legislation changing the franchise, the electoral system or the number of constituency and regional members for the Scottish Parliament should be passed by a two-thirds majority of the Scottish Parliament.
Draft Clauses 3 to 9 seek to enact these recommendations. These draft clauses can be regarded as substantially fulfilling the Smith Commission’s recommendations.
They are constitutionally significant in that they require a super-majority for certain legislation. This treats the electoral arrangements as constitutional fundamentals which cannot be changed without widespread political support. In principle, this seems desirable.