Constitutional implications of the Government's draft Scotland clauses - Political and Constitutional Reform Contents


During the Scottish independence referendum campaign, political commitments were made which led, after the "No" vote, to the convening of the Smith Commission, the purpose of which was to facilitate an agreement for further devolution of powers to the Scottish Parliament. Draft clauses were published by the Government in response to the Smith Commission's report. We have reviewed those draft clauses which concern political and constitutional reform (draft clauses 1 to 9).

While we acknowledge the political reasons for swift publication of the clauses, we are concerned this seems to have been at the expense of broader consideration of the consequences for the future of the UK. We are disappointed there has been no attempt to provide for full pre-legislative scrutiny of the clauses by this Parliament. We call upon the incoming administration to recognise, and consult upon, the consequences for all parts of the UK when introducing legislation to implement the Smith Commission Agreement and other proposals on constitutional reform affecting the Union.

We further recommend that the Government establish a mechanism for considering the effects of proposed devolution settlements in the round, together with the trends towards decentralisation in England, to ensure that change strengthens the Union.

We also recommend that the Wales Office take account of our conclusions and recommendations when preparing legislation to give effect to the Government's proposals for further devolution to Wales.

Draft clause 1 claims to affirm the permanence of the Scottish Parliament. We consider the Scottish Parliament permanent and its abolition inconceivable. We do not think draft clause 1 weakens this fact. While the legal claims made in the clause could be misunderstood, it could provide a further political obstacle to attempted abolition. We explored possible mechanisms for entrenchment of the Scottish institutions, but do not recommend redrafting to incorporate such mechanisms. We do note that the policy aim could be achieved more effectively by codification of the UK's constitution.

We consider that draft clause 2 does not give the Sewel Convention the force of statute, but may strengthen the Convention politically. We believe it fails to acknowledge that the Convention extends to legislation affecting the competences of the devolved institutions. We recommend that the presence of the word "normally" in the Sewel Convention, and the applicability of the Convention to legislation affecting the competences of the devolved institutions, be addressed in any redrafting of draft clause 2.

We find draft clauses 3 to 9 to be largely uncontroversial, save that the drafting of clause 3 is unhelpfully impenetrable. We recommend that: the drafting of clause 3, in particular, be reconsidered; the cost of the Electoral Commission's functions in relation to Scottish Parliament elections be considered; and consideration be given to some additional safeguard for ensuring that changes to Scottish Parliament electoral boundaries must have broad cross-party support.

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Prepared 22 March 2015